One of the most important aspects of a divorce is the allocation of property. You and your former spouse may have acquired certain assets during your marriage that could be up for division during your divorce proceedings, and it is important to know what is and is not marital property.
Different states follow different rules for the division of property. Some states follow community property rules, which states that all assets acquired during a marriage are forms of marital property and the court must divide them equally between the couples. Indiana is not a community property state, but follows a rule of equitable property distribution.
Dividing Marital Property in Indiana
While marital property refers to any property you and your spouse acquire during your marriage, you may also have assets in your own name. Your separate property may encompass any property you own before you get married, as well as any property you gain through gift or inheritance during the marriage. Unlike other states, Indiana treats separate property as marital property and will include it in the division.
Since Indiana is an equitable distribution state, the judge presiding over your divorce must divide your marital property in a just and reasonable manner. In most divorce cases, this means that you and your spouse will receive an equal share of the assets you own.
However, there are some situations where an unequal distribution of property may be more equitable than an even split. The court will consider the following factors when deciding how to divide your marital property.
- The income, earning potential, and economic circumstances of each spouse
- The contribution of each spouse to the property acquisitions
- Whether the conduct of either spouse resulted in the disposal or degradation of the property
- Whether or not it would be desirable to award the family home to the spouse with the primary physical custody of the children, if applicable
- Potential tax consequences each spouse may endure due to the property division
Do You Need to Go to Court for Property Division?
While courts must follow these legal guidelines when dividing property in a divorce, you do not need to go to court to come to an agreement with your spouse. Before going to the courtroom, you and your spouse may create your own agreement during negotiations.
During divorce negotiations, you and your attorney will meet with your former spouse and his or her legal counsel to decide which assets are marital property, the monetary value to these assets, and what agreement constitutes equitable distribution. If there is a prenuptial agreement or other premarital document that outlines the division of your properties, you can follow these guidelines to create an agreement.
You typically have more control over property division during negotiations than you do in the courtroom, since the judge is responsible for determining the terms of your agreement. However, lingering animosity, complex or high-value assets, children, and many other factors can complicate a divorce case. This can lead to an inequitable distribution of property.
Whether you are entering trial or negotiations, you need an Indiana divorce attorney to advocate for and protect your best interests during these processes. Your lawyer can negotiate on your behalf, explain how the proposed distribution can impact your finances, and help you prepare for this sensitive legal process. If you have not done so already, contact your attorney as soon as possible to discuss your divorce and next steps.