Property division in a divorce has the potential to turn the courtroom into a battleground. Understanding the statutory presumption for property division and how that presumption can be rebutted can help eliminate some of the areas of contention when dividing marital property. This blog discusses Indiana’s marital property division laws and the statutory presumptions for property division.
The statutory presumption for property division is contained in one Indiana code. Two sections of this code are applicable when discussing property disposition. First, is the definition of marital property. The relevant section states, in part: “(a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether: (1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right: (A) after the marriage; and (B) before final separation of the parties; or (3) acquired by their joint efforts.”
In plain English, all property of either party is considered marital property, which the court can divide during a divorce. It does not matter if you owned the property before the marriage or purchased it with your own money during the marriage; it is still subject to division by the court. However, the second section of the relevant statutes provides a list of factors the court will consider in order to rebut the presumption that simply dividing the property equally is not fair or just in your specific situation or as to a particular item of property.
The court assumes that an equal division of assets is just and reasonable. This presumption can be rebutted by presenting evidence showing that it would not be. Evidence concerning one or more of the following factors will be considered by the court: “(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.”
These are a couple things to keep in mind when it comes to division of property by the court in a divorce. Property division determinations made by the court are made as a whole, not item by item.. This means that the court’s concern is the total value of the property and the total value of property each party receives, not what particular item a party is given. Parties who wish to ensure that each receives specific items of property should work together to divide what property they can, before asking the court to intervene. You should also be aware that when one party is given more of the assets than the other (in dollar value), the court may order that party to pay the other an amount which will equalize the division of the assets.
As you can see, property division can be complicated, even with the statutory presumption for an equal division. If you are involved in a dispute over the division of marital property, the experienced attorneys at Ciyou & Associates, P.C. can help get your case resolved and get you a fair share of the marital property.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.