Under Indiana law, a trial court starts dividing the marital estate with the presumption of an equal division. There are numerous reasons for the court to deviate and award the other spouse more if it is fair (equitable in legal parlance). A category that is often overlooked is “dissipation” of marital assets, which means the illicit or illegal acts of a party has reduced the amount of the estate available to divide. This blog looks at three common types of dissipation of marital assets. The first is alcohol or drug addiction. With this, a party may reduce the total marital estate ...
April 6, 2016Adam Hayes
Marriages, particularly those of a long duration, usually intermix marital property of all kinds in organic ways that can be hard for the divorce court to untangle in dividing the marital estate in a just and reasonable manner. There are many aspect of the evidence the trial court must consider. In this blog, we cover five key things that apply in most divorce cases. The first is Indiana follows a one-pot theory, whereby property owned by the parties coming into the marriage, acquired during the marriage up to the point a divorce is filed is marital property.1 Second, the net marital “property” ...
September 24, 2015Adam Hayes
Most divorces, even highly contentious ones settle outside the court. Today’s trial court judges do a great deal of case management, such as guiding the parties to mediation, appointment of GAL, and custody evaluations. These steps result in most cases settling on the parties terms. The trial court judge must of course approve any agreement, and will not approve one that is not in your children’s best interests, but typically those issues do not arise. Only a small portion of cases actually have a contested trial on property issues or child custody. As such, there is not much general awareness of ...
July 8, 2015Adam Hayes
While real life domestic litigation is gritty and full of harsh realities of relationships and what happens when they end, there are three important legal lessons Indiana divorce or domestic litigants can take from the new movie or sequel “Ted.” First, everything that is not a child, even a family heirloom, beloved toy or pet is property. There is not custody or visitation rights to items. Indiana trial courts are bound to divide it and divide all property in a just and reasonable way. Second, court is serious. This is the time to prepare for your case with your attorney and tell ...
July 7, 2015Adam Hayes
Indiana follows the “marital pot” theory to determine what property is “marital property.” The “marital pot” theory means that ALL assets and liabilities, owned byeither Husband or Wife BEFORE and DURING the marriage, no matter how the property is titled, is jointly owned by the husband and wife equally and collectively. Indiana is unique in that there is no “separate” property, like many states recognize. Other states may consider debts or assets held before the marriage to be “separate” or property acquired during the marriage by inheritance or gift to be “separate.” Separate property is not subject to division, and is ...
December 11, 2014CD
If you are unhappy with the property division as ordered by a court, you can and should seek an appeal. If the division does not follow the law, or the evidence before the court, you have only two options, with limited time, to correct the erroneous decision. Unlike child support and child custody issues, a property division order by a court is not modifiable. In other words, a property division is a final order. (It is important to keep in mind that if you reach a settlement agreement, either through negotiations directly with your spouse, between your and your spouse’s attorney, ...
November 11, 2014CD
Indiana follows the “marital pot” theory, which means that all assets and debts, owned by either Husband or Wife before and during the marriage, no matter how the property is titled, is jointly owned by the husband and wife equally and collectively. The statutory presumption is that property will be divided equally (50/50) upon divorce.1 In some circumstances, there may be a reason to deviate from this presumed 50/50 division, and award a larger share to one or the other spouse. The court may consider the following factors as a basis to deviate from the presumed 50/50 division: The contributions of each ...
August 28, 2014CD
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 ...
June 10, 2014CD
While every divorce case is unique when it comes to property, assets, debts, incomes, child custody, and parenting time, in each of these categories, courts have a starting point, and lawyers will help to you to argue your position and move off the presumed starting place. 1. Property (assets and debts): The Court presumes that of all property owned by the parties either before or during the marriage will be divided 50/50. There are exceptions to this general rule, including situations where one party entered the marriage with substantial property acquired years before the marriage, or one party makes substantially less income ...
May 27, 2014CD
In many civil cases, mediation is a potential option prior to a final hearing or trial to allow the parties to negotiate with the assistance of a mediator. A mediator is a neutral third party who acts as a go between for the parties and work with both sides towards a settlement. However, a complete settlement is not the only outcome of mediation. Even if mediation fails to settle every issue before trial, there can be diverse outcomes of mediation that can assist the parties and help narrow issues for trial. Mediation, even when it fails to settle each issue completely, ...
April 1, 2014CD