In any divorce proceeding the assets and debts must be divided between the respective spouses. Thus, there are three (3) questions to consider: 1) What is the marital estate made of? 2) What does the law say about dividing it? And 3) How do I get my fair share?
1) What is the marital estate made of?
In Indiana, the marital estate is all assets and debts owned by either spouse both before and after the marriage. This is called the “marital pot” theory.1
2) What does the law say about dividing it?
In Indiana, it is presumed that the marital estate will be divided 50/50.2 However, there are certain circumstances where a court may divide the property unequally. The following factors may be considered in determining if the court should divide the marital estate unequally:
- How and by whom the property was acquired (i.e. one spouse bought, inherited, or was gifted, the property before or during the marriage and never shared it with their spouse).
- The economic circumstances of each spouse (i.e. one spouse makes substantially more income and/or has a better future income earning ability).
- The conduct of the spouses during the marriage relating to the dissipation of assets (i.e. did one spouse gamble away large sums?)
3) How do I get my fair share?
Properly preparing your case is the key to getting your “fair” share. Whether you meet any of the factors for an unequal division (you get more than 50/50) or you don’t and you will get the 50/50 division, there are still reasons where it could appear to be a division on paper and end up being something else in reality. This can happen for a couple reasons 1) the court (or you) doesn’t know about all the property and debts 2) the court (or you) do not know the “right” value of the asset or debt.
For example, you own a house that has a mortgage. If the house is valued as having equity (value less the debt against it) of $100,000, but it really has $150,000 in equity, the spouse who is given the asset after the divorce gets a windfall and receives a larger share of the marital estate.
If dissipation of assets is an issue in your case (i.e your spouse gambled away large sums of money), it is important to have the proof of that (bank statements, credit card statements, etc). These facts will go to show why the bad actor should be apportioned more of the debts.
To protect yourself and get your “fair” share of the marital estate, here are some things you should consider during a divorce:
- Real Estate Appraisal
- Personal Property Appraisals (jewelry)
- Business Valuations (small family owned business)
- Retirement Account Valuations
- Identification of ALL assets and debts
- Proof of dissipation of assets (beyond normal living expenses)
- Spousal Maintenance (due to disparity in income earning ability and other factors)
We hope that you have found this information to be helpful in understanding property division in divorce matters. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.