Category Archive Property division

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Is Indiana a 50/50 state for divorce?

With a divorce in Indiana spouses face a variety of issues. And the division of property is one of them. Many couples are wondering how their property will be distributed? And this is a completely logical question, because the separation of property in Indiana has its own characteristics and nuances. There are couples who can agree among themselves and based on this, their property division will be easy and painless. But there are also spouses who cannot find a compromise so in their case property will be separated in accordance with the law and on the basis of a judge’s decision.

Indiana property division law

Typically Indiana courts in divorce are guided by the fact what will be fair for both spouses in the distribution of property. This does not mean that the division will be equal. In other words, if the court does not consider that the distribution of property in the 50/50 proportion is fair, it will not decide in favor of equality.

However, this does not mean that spouses cannot divide their property in half. In Indiana there is a rebuttable presumption of equal distribution, which is that the court will divide the common property in half, if spouses do not have refutations. If one of the spouses believes that the 50/50 proportion is not honest, he or she is obliged to provide the court with indisputable evidence of his conclusion, after which the court will divide the property in a proportion that will be fair.

According to the law in Indiana, the duration of the marriage is not the determining factor in the separation of property. However, in those marriages that did not last long the court would not follow the presumption of equality in order to give the spouses the opportunity to preserve what they entered into marriage with.

Marital Property vs Separate Property

Based on Indiana law common or marital and separate property are different concepts. The common property is all that the spouses acquired from the moment of marriage, while the separate one is the property that each spouse owned before marriage, or all that the spouse inherited or received as a gift while being married. Usually only common property participates in the division of property, although the court can even divide separate property, if he considers that it is fair.

Another type of property in Indiana is a mixed one, it is a situation in which a separate property can become common. For example, a bank account owned by one of the spouses before marriage is considered separate. But if the second spouse during the marriage made contributions to this account, then it will be considered marital. Mixed property is quite difficult to divide, so this issue is considered by the courts very carefully. A big advantage would be if the spouses have a marriage contract or a settlement agreement and know how to share their assets and liabilities bypassing the courtroom.

Factors in property distribution

In order to understand how to divide property a court must analyze various factors of a marriage. Based on this analysis, it will be decided: to divide the property in half or fairly. The following factors are key to the court:

  • Any actions or contributions that spouses made for the purchase of property.
  • How and in which way the property was acquired.
  • The economic situation of each spouse.
  • The ability of each spouse to earn money and be financially independent.
  • The presence of custody over minor children.
  • The behavior of the spouses in the marriage, which led to the dissipation or alienation of property.
  • Tax consequences of separation.

Grounds for divorce are never taken into account in the process of  property separation. However, if one of the spouses provides incontrovertible evidence that his or her partner spent money on gambling or other dubious activities during the marriage, this will definitely play against equal division of property.

The distribution of marital property always depends on the peculiarities of the marriage. Different situations can affect whether a property will be divided equally or in any other proportion. In addition, the spouses themselves can decide how to make the separation. Very often couples prefer to simply sell most of the property and divide the proceeds according to state law or at their own discretion.