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Indiana Divorce FAQ's - Property Division

This is about property division in divorce in Indiana, including the general rule for Indiana property division, what effect the length of marriage and conduct of the parties has on property division after divorce in Indiana, how separate property works in Indiana, and treatment of the marital home and retirement plans in divorce in Indiana.

This information is from Lisa Garcia Reger, the DivorceInfo Network Lawyer for Indiana. Click here to visit her firm's web site.

What’s the general rule of property division (equitable distribution, community property, or legal title)?

In the State of Indiana the general rule of property division is equitable distribution. In the State of Indiana there is a rebuttable presumption for equal division of property. The presumption of an equal distribution of property may be rebutted by a party who presents relevant evidence that an equal division would not be just and reasonable. Some of the factors a court may consider in determining an equal distribution is not appropriate are: (I) the contribution of each spouse to the acquisition of property, regardless of whether the contribution was income producing; (2) the extent to which the property was acquired by each spouse before marriage or through inheritance or gift; (3) the economic circumstances of each spouse at the time of the disposition of the property, 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 a spouse having custody of any children; (4) the conduct of the parties during the marriage as related to disposition or dissipation of their property; and (5) the earnings or earning ability of the parties related to a final division of property and final determination of property rights of the parties.

What effect does the conduct of the parties have on property division?

In general, Indiana is considered a "no fault" divorce State. However, if the Court were to find that one party dissipated marital assets, i.e., gambling, poor business investments, then the Court may consider this conduct in determining that an equal division of property would be inappropriate.

What effect does the length of the marriage have on property division?

According to Statute, the length of marriage does not have an effect on property distribution. However, in a relatively short term marriage, a Court would probably deviate from the 50/50 presumption to allow parties to keep what he or she brought into the marriage.

Is there such a thing as separate property? What does it take?

Technically, according to the Indiana Statutes, marital property consists of property owned by either spouse before the marriage, acquired by either spouse in his or her own right after the marriage and before final separation of the parties or acquired by their joint efforts. In order to keep property separate, the parties must have executed a valid Pre-Nuptial Agreement prior to their marriage. More often than not, a Court will deviate from the 50/50 presumption in order to give a spouse an inheritance or property acquired prior to the marriage.

Any special rules for the marital home?

The Indiana Statutes suggest that it is desirable to award the family home or the right to dwell in the family home to the spouse having custody of the children.

How do retirement plans get divided?

Retirement plans that are payable after the dissolution of marriage are distributed by setting aside to either of the parties a percentage of those payments either by assignment or in-kind at the time of receipt. In Indiana, only vested interests in retirement accounts are subject to division by the Court. At this time, retirement benefits that are contingent, for instance upon the employee remaining at such place of employment for a certain number of years and those number of years have not been achieved at the time the divorce was filed, then those retirement benefits would not be subject to division by the Court.

Other issues in Indiana:

Stop the Divorce! | How much child support?
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