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How Do We Figure Out Our Asset Division in a Divorce

Published in Family Law on October 1, 2015.

Wedding season is just around the corner and while many of us enjoy attending these celebrations, the reality is that forty-five to fifty percent of first marriages end in divorce. That is why it is important to be aware of how your state deals with divorce, especially asset division.

When you file for divorce in Indiana, all property acquired before and during the marriage are subject to division. Because of this, many people refer to the collection of assets in a divorce as a “marital pot.” Once a Petition for Dissolution of Marriage is filed, this pot closes and there are three main questions that must be addressed. First, what is included in the pot? Second, how are those assets included valued? And, finally, how will the property be distributed?

What is included in the pot?

Indiana law states that the marital pot includes property owned by either spouse before marriage, individually owned property acquired during the marriage and before final separation, and any jointly owned property. The marital pot does not include property which value cannot be ascertained when the pot closes. This can include a number of interests, including future inheritances or not-yet-vested interests. You should consult with an experienced attorney in order to determine what will and will not be included in the marital pot.

How are the assets valued?

Assets can be valued any time between the date of filing and the final hearing on dissolution. With some assets, the date of valuation will not matter very much. However, if one of the assets is, for instance, a small business, the date of valuation can make a huge difference. Additionally, such valuations are tedious and sometimes expensive. If you are thinking about divorce and own a small business or a large number of assets, it is in your best interest to contact an attorney to discuss your best options.

How will the property be distributed?

Indiana law requires the court to presume equal distribution of the marital pot, so long as such distribution is just and reasonable. In making this determination, the court must take the following into consideration:

  1. The contribution of each spouse in acquiring the property. The court should not consider whether such contribution was income producing. For instance, if one spouse was a stay-at-home parent while the other was the breadwinner, the court will consider the stay-at-home parent’s contribution in maintaining the home.
  2. The extent to which the property was acquired by each spouse before the marriage or through an inheritance or gift.
  3. The economic circumstances of each spouse at the time of disposition. This includes the court considering whether it would be more desirable for the custodial parent to be awarded the family residence.
  4. The conduct of the parties during the marriage as it relates to the disposition or dissipation of the property. This factor allows the court to consider things that led to the dissolution or that were not beneficial to the relationship, such as drug use.
  5. The earnings or earning ability of the parties as it relates to the final division of the property and the final determination of the property rights of the parties.

When the court makes a determination on the distribution of the marital property, it is important to have an advocate on your side who is prepared and experienced in negotiating and arguing marital property distribution. Otherwise, you may end up with less than you deserve.

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