When couples decide to divorce, the first priority is usually figuring out new living arrangements so each spouse can get some breathing room. Then, the focus often shifts to finding a divorce attorney and initiating the legal process. Thoughts about the division of property tend to come later, once the initial shock wears off, despite the fact that this issue is so central, and commonly disputed, in divorce cases. Considering the time and effort associated with acquiring property, especially real estate, the tendency to challenge the other spouse on this issue is understandable.

Disputes over property typically relate to two issues: What is a fair division and which property should be considered part of the marital estate? This second issue is particularly important because only marital property is subject to division, so the more that is left out of this category, the less one spouse is likely to receive. An Indiana court of appeals recently issued a decision on the cutoff date for the inclusion of property in the marital estate while the divorce is pending. The court decided that only property acquired before the divorce petition is filed should be part of the marital estate. Thus, new property obtained by either spouse during the pendency of the divorce is not subject to division. In order to better understand which property is divided and how courts evaluate a fair division of assets, a discussion of these issues will follow below.

What is Marital Property?

As noted above, the court will only divide property between spouses if it is considered marital. All property owned by either spouse is presumed to be marital property, which includes:

• Property owned by either spouse before the marriage;
• Property obtained during the marriage and before the final separation; and
• Property purchased through the joint efforts of both spouses.

Thus, until the divorce petition is filed, anything a person owns is part of the marital pot – personal property, real estate, bank accounts, retirement funds, etc. However, even though a court has the discretion to divide property owned separately, that does not mean it will.

How Court Decide Equitable Division

All evaluations of property division start from the premise that the property should be divided equally, but the division must also be just and reasonable. Consequently, the split will not be 50/50 if this division is unfair. It is generally a spouse’s responsibility to rebut the presumption of an equal division, which involves presenting evidence specifically addressing the following issues:

• Each spouse’s contribution to the acquisition of property;
• How much property was received as a gift or inheritance;
• The economic resources of each party;
• The behavior of each spouse during the marriage, particularly if such behavior dissipated assets (e.g., gifts related to an extramarital affair); and
• The earnings potential of each spouse.

While a court will assess how to divide property, the parties are generally encouraged to form their own agreement on this issue, which is later incorporated into the divorce decree, making the terms legally enforceable. However, one important limitation to crafting one’s own agreement is that the court is unable to modify or in any way alter the division of property, which makes such agreement permanent. Consequently, consulting an experienced divorce attorney before finalizing a settlement is best to ensure the terms appropriately address each party’s position and obligations.

Talk to a Divorce Attorney

Divorce changes almost everything about your life, but seeing the extent of this change is often difficult when going through it. An experienced divorce attorney will have the objectiveness necessary to advise you on the arrangements that best protect your interests in the short- and long-term. Family law attorney Christopher L. Arrington handles all aspects of divorce for clients in the Indianapolis area, and will be there to guide you through this process. Contact him to schedule an appointment.