Property Division and Divorce

How is Property Divided in a Divorce?

Everyone has heard that story about someone who went through a divorce and came out with absolutely nothing. Friends tell friends to get this attorney or that attorney because they were able to get them the house, the car, and the bank accounts, and their spouse was left with the rest. What those people might not be able to explain (if those stories are actually true) is why that happened.

First, Indiana law presumes that a 50/50 division of marital assets is just and reasonable. That means that after all the assets are valued and the debts are accounted for, the presumption is that each party will receive half. That is not always the case however. Indiana Code 31-15-7-5 also lists five factors that the court should consider in rebutting a 50/50 division. Those five factors are as follows:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the parties.

Ind. Code § 31-15-7-5 (West)

This does not necessarily mean that if you make a higher salary or you just received a large inheritance that your spouse will be entitled to a larger percentage of the marital pot. The court will take these five factors into consideration as a whole to determine what makes sense for the futures of the parties involved.

If you are wondering how far the court can deviate from the 50/50 division, that will depend on the Judge evaluating the case and the specific facts allowed into evidence. Your attorney will be your best resource to advise you on how a Judge would be most likely to rule in your situation. It is always recommended to sit down with an attorney and discuss your situation before you go into a legal proceeding on your own.   

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