One of the many issues that you will encounter during your divorce is how to divide up property that either you, your spouse, or both of you have obtained during your marriage. Property does not only include homes and real estate, but it also includes bank accounts, retirement or investment accounts, personal property like furniture, motor vehicles, and anything of any value. Your divorce decree should state which spouse gets what property, whether you can reach an agreement with your spouse or the judge makes a decision after a court hearing.
Property that the Court Can Divide in a Divorce
Under Indiana Code § 31-15-7-4, the judge must divide all property that belongs to either or both parties during a divorce. The judge can divide property whether it is:
- Owned by one spouse before the marriage,
- Obtained by one spouse during the marriage and before the date of their separation, or
- Obtained jointly by the spouses.
How the Court Decides Which Spouse Gets Property in a Divorce
Indiana Code § 31-15-7-5 states that the judge must presume that equally dividing the marital property between the two spouses is fair and reasonable. However, there are some situations in which an equal (50/50) division might not be fair to one spouse. In that case, the spouse can present evidence to rebut the presumption of an equal division of property. In other words, the spouse can argue that he or she ought to receive more than 50% of the marital property, and the other spouse should receive less than 50% of the marital property.
When a judge is deciding whether to divide the property equally or in a different way, he or she must consider the following factors:
- How each spouse contributed to getting the property (even if the contribution was not by producing income to buy the property)
- Whether a spouse received the property before the marriage or through an inheritance or a gift
- The financial circumstances of each spouse at the time of divorce, including whether a spouse who has custody of the children should be able to stay in the marital home with the children for a specific period of time
- Whether each spouse handled property appropriately during the marriage (such as if one spouse spent large sums of money on gambling)
- The earnings or earning ability of each spouse related to the final division of property and a final determination of property rights
The judge also has to consider the tax consequences of property division on the financial circumstances of each spouse at the time of the divorce and in the future.
If a spouse argues that an unequal division of property is fair based on the factors listed above, then the judge can decide that the spouse has “rebutted” the presumption of an equal division of the property. Therefore, the judge is not required to equally divide marital property if it is not fair to one spouse.
Ways that the Court Can Divide Property in a Divorce
A court can divide property in a divorce several different ways. For example, the court simply can divide the different items of property between the parties. The court also can order the parties to sell the property and divide the proceeds between them.
Alternatively, the court also can allow one spouse to keep all or part of property, but also require that spouse to pay the other spouse a specific amount of money. This type of property division often happens with real estate. The court may order one spouse to keep the marital home, but it also require that spouse to pay the other spouse a certain amount of money that represents a portion of the equity or value of the home.
Make an Appointment with Our Office Today
When you are facing divorce proceedings, you likely are to have many questions about the property and assets that you and your spouse have accumulated during your marriage. We can answer those questions and give you a clear sense of what to expect in your divorce case. Contact Arnold Law Office by calling 765-962-3344 or 866-958-5995 and set up a time to meet with us about your case.
