Thursday, October 4, 2012

What to Expect: Property Division

            In Indiana, courts divide a divorcing parties’ property in a manner which is deemed to be fair and reasonable.  Indiana law follows the “one-pot” theory for the division of marital property, which presumes all marital property is put into one pot and that a fifty-fifty (50/50) division of all marital assets and liabilities is presumed to be fair and reasonable.  However, there are various factors Courts consider in determining whether or not a deviation from the equal division is warranted, including: the contribution of each spouse to the acquisition of property; the economic circumstances of each spouse at the time of the disposition of the property; the conduct of the parties during the marriage as related to disposition or dissipation of their property; and the earning ability of the parties. Thus, while an equal division is presumed, one party can request more than fifty percent of the marital estate.

            What is Marital Property?  It is important for parties to understand what is considered marital property as many people believe certain assets or accounts remain separate from the estate.  This is often incorrect. Absent a prenuptial agreement, excluding certain property from becoming part of the marital estate, Indiana law presumes that all assets and debt brought into or acquired during the marriage is marital property and is subject to division by the Court.  That being said, one may argue that certain property or liabilities should be allotted to one party in the division of the estate.  An example of a liability remaining with one party would be a student loan.  Such a determination is very contextual and seeking legal advice is recommended to determine if such a request is supported by the facts of a given case.  Each case is unique and the decision to exclude property is left to the discretion of the Court.  Naturally, there are certain issues which arise more often than others and therefore, more Court decisions regarding the treatment of such property in dividing the estate. This gives parties guidance on what may be expected after a hearing on the given issue.  Further, it is important to note that any property which is acquired after the date of the filing of the Petition for Dissolution of Marriage may be considered property which is separate from the marital estate.

The division of each marital estate is requires the work of the parties and counsel to reach an agreement which works best for the family.  Parties are well advised to seek the advice from financial planners to determine a division which will have the fewest tax consequences or negative implications on the estate.  

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, or any other family law concerns contact our firm at 317.DIVORCE or visit our website at

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