The divorce process can bring up many emotions as each person tries to work through the financial and lifestyle adjustments that come when a family separates. These emotional changes can also be compounded by the legal issues most commonly involved in any divorce – child custody, visitation, child support, and property division.  Discussion around any of these topics can turn into disagreements between the parties, which can complicate and extend the court’s timeline to issue a final order dissolving the marriage.

Property division is relevant in almost every divorce case, unlike issues related to children, because most couples acquire property during marriage because of a couple’s collective contribution to their financial resources. The type of property owned by a married couple typically changes based on age, with younger couples more concerned about buying a marital home and older couples occupied with retirement benefits and insurance policies.

A recent decision by an appeals court in Indiana, however, shows that separate property brought into the marriage can become marital property, and thus, subject to division upon divorce. In this case, the court ruled that the survivor benefit of the husband’s military pension should be included as marital property because it provides a deferred benefit to the other spouse and reduces the income of the military spouse once elected. Because property division is such an integral part of divorce cases, an overview of how the law in Indiana treats this issue will appear below.

Types of Property Divided

In Indiana, all types of property owned by both spouses are put into the marital property pot, including separate property one spouse brought into the marriage. This separate property is included because any appreciation in the property’s value while the parties were married is considered marital property. Property acquired by one spouse while married, but before the couple’s final separation, is also considered marital property and subject to division. In addition, any property a couple jointly purchases is also considered marital property.

It should be noted, though, that courts will typically award separate property to the original owner despite the default position of putting all property together. However, the only way to ensure separate property is not divided with other spouse is execute a premarital agreement.

How Property is Divided

Property division in Indiana starts with the presumption that the couple should equally divide what they own, but the main factor driving a court’s decision in property distribution is achieving a just result. To that end, either party can attempt to rebut this presumption of an equal division by arguing that it would be unfair to follow that approach. The factors a court will consider when deciding if an unequal division would be more equitable include:

• The contribution of each spouse to the couple’s ability to purchase property, regardless of whether that contribution was financial;
• How much of the property was acquired before marriage or by inheritance or gift;
• The economic situation of each spouse at the time property is divided;
• Behavior by either party during marriage showing intentional or reckless dissipation of marital The earning ability of each party.

While these legal rules give courts a starting point when determining property distribution in a divorce, each case is unique, and the outcome will likely be impacted by additional factors such as the length of the marriage, which party provides the majority of childcare, and career opportunities foregone in order to support the other spouse.

Hire a Family Law Attorney

Property division is determined on a case-by-case basis and is dependent, in part, on the values assigned to each piece of property. In order to ensure you receive the fairest award of marital property, it is necessary to work with attorney who can tell a court why a piece of property is worth a certain amount and why it should be given to you. Attorney Christopher L. Arrington represents clients in central Indiana in all matters related to divorce, and he is waiting to assist you with your case. Contact him today to schedule an appointment.