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Property Division for Indiana Divorces

How is property divided by divorce courts in Indiana? What property can be divided in a divorce case? Is property owned before the marriage subject to division? What about property given to me through gift or inheritance from my family during the marriage?  

These are very common questions and concerns in an Indiana divorce lawsuit. This article is intended as a brief overview of Indiana divorce property division law that should answer some of these questions.

The division of property in a divorce in Indiana is governed by Indiana Code section I.C. 31-15-7.

The first important thing for divorce litigants to understand is that all property owned by either party, whether titled jointly or separately, is subject to division by an Indiana divorce court. I.C. 31-15-7-4 says:

"In an action for dissolution of marriage under
IC 31-15-2-2, the court shall divide the property of the parties,
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right: after the marriage; and before final separation of the parties; or
(3) Acquired by their joint efforts."
(emphasis added)

All property owned by the parties whether titled jointly or separately is included in the marital estate and subject to division by the court. This specifically includes property owned prior to the marriage or property acquired during the marriage whether that property was acquired by one of the parties alone or whether it was acquired by the joint efforts of both of the parties.

The Court can divide the marital property in a number of ways. I.C. 31-15-7-4 specifies the court can divide the property in kind, order installment payments toward property division, order sale of property or set aside a percentage of future payments for assets such as retirement plans to be paid directly to one party or the other.

Another very important point for divorce litigants to understand is Indiana's divorce property division statute states that "The court shall presume that an equal division of the marital property between the parties is just and reasonable."  

This means simply that the divorce court Judge begins considering property division in a divorce case with the presumption that an equal division of  all of the property owned by the parties (including property owed prior to the marriage or property owned by one of the parties in their separate name) is just and fair.

Just as important as the presumption that an equal division of marital assets is just and reasonable are the circumstances and facts a court can consider to rebut the presumption of equal division. Some of the factors the court can consider in deviating from the presumption of equal division of property are listed in I.C. 31-15-7-5 which says:

"However,this presumption may be rebutted by a party who presents relevant
evidence, including evidence concerning the following factors, that
an equal division would not be just and reasonable:
(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
           (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."
(emphasis added)

  So, the Indiana divorce property division statute begins with the assumption that all property owned by the parties, including property owned prior to the marriage or inheritances, are subject to division in a divorce lawsuit. The statute also establishes the presumption that division of all of these martial assets equally is presumed to be just and reasonable. But, the statute also gives us a list of factors the divorce court Judge can consider which may rebut the presumption that an equal division of assets is fair and give the court reason to deviate from an equal division of marital property.

Indiana divorce cases often involve heated dispute over the division of marital property. Many of the arguments stem from disputes and disagreements about the value of the assets. The parties in the divorce are free to have experts appraise and assess the value of assets. Real estate is appraised. Pensions and retirement plan are often evaluated based on their present day value. Businesses are appraised.  In many divorces, the bone of contention is disagreement over what the assets are worth.

Many disagreements in divorce cases stem from arguments that facts or circumstances exist that should lead to a deviation from the presumption that an equal division of the marital estate is just and reasonable. Parties may argue over inclusion of inherited property in the division. They may argue over division of gifts from their respective families. A spouse who has interrupted their career to raise children may argue they should receive more than 50 percent of the marital estate because of their financial circumstances of reduced earning potential.

Disputes over property division are some of the most complicated issues in divorce litigation. They also can have a life long financial impact on the parties to a divorce.

If you have questions or issues regarding division of marital property in an Indiana divorce case, you should consult and Indiana divorce lawyer or family law attorney.

I.C. 31-17-5 can be found HERE.

A copy of I.C. 31-17-5 is HERE.



This article and information on this website are for informational purposes only and are not intended to be legal advice.  The information provided is not, and is not intended to be, a substitute for obtaining legal counsel, advice or representation. Contact between Daniel H. Wolfe and any persons using this site via email, phone, or in-person or from articles contained on this website does not establish or create an attorney-client relationship.

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