Practically any couple that goes through a divorce is faced with a division of property. It could be declared that this is one of the most challenging tasks that arise in the process of marriage dissolution. Under the law, spouses must share all their marital property. The separation process will be much faster and easier if soon-to-be exes are ready to make a settlement; otherwise, they will have to decide all their disputes in the courtroom. Division of marital property will be made by court order and under Indiana law.
Marital and Separate Property
Indiana law states that marital property is all that was acquired by the spouses during the marriage, i.e., from the wedding and until almost the end of the divorce. Marital property includes movable and immovable possessions, pensions, family business, any income and earnings, retirement assets, as well as debts. Marital property is the subject of division.
Indiana also distinguishes separate property – that’s all that was acquired by spouses before marriage. Also, any inheritance or gifts are considered as separate property. In essence, separate property is not subject to division; however, the court can also divide this type of possessions. For example, if prior to marriage, one of the spouses owned a bank account, and during the matrimonial life other spouse increased the value of this account, the court has the right to divide this property.
Indiana Property Division Law
In Indiana, the separation of marital property is handled by the Domestic Relations Court. The law assumes a fair division of property, which in general does not mean that all ownership will be divided into equal shares.
However, there is a presumption of equality in the state. Initially, it is assumed that the property should be divided 50/50, but either spouse can contest this statement and ask the judge to make a separation based on what is fair.
Indiana is a no-fault state, so the reasons for the divorce do not particularly affect the decision of the judge regarding the separation of marital property. However, if the court is convinced that one of the spouses is guilty of embezzlement of property, for example, wrong investments or gambling, then naturally the property will be divided in favor of the affected spouse. Besides, the duration of the marriage does not affect the proportions during separation. Although if the marriage was short, the presumption of 50/50 would be inappropriate and the court would divide the property in such a way that each spouse retains the right to what he or she brought into the marriage.
But not always soon-to-be exes have to participate in court hearings in order to divide the property. In general, if the spouses agree, they can make a settlement agreement and share possessions at their discretion. If it is fair and does not infringe the rights of one of the spouses, the court will approve it. The prenup is also a big plus, as it clearly regulates the property interests of the spouses during a divorce.
Factors Affecting Property Division in Indiana
To divide the property, the court must analyze several factors that take place in the family. These include:
- the contribution each spouse has made to purchase the property;
- how the property was acquired: before marriage, during marriage, gifts or inheritance;
- the economic situation of each spouse at the time of the division of property;
- the need of each spouse in a family home;
- the contribution that each spouse has made in reducing the value of the property;
- the presence of custody of the common minor child and the need of this child in housing;
- financial capabilities of the parties and the ability to earn;
- tax implications of the division of property;
Valuing and Dividing Property in Indiana
The first thing that the court does when it comes to the division of possessions is that it divides everything into marital and separate property. The next step is to evaluate each marital own and assign a value to it. This is for convenience; it is much easier to share common property if you know its monetary equivalence. After this, a fair separation takes place. Also, many spouses prefer first of all to sell most of the common possessions and just divide all earned money.
Division of Marital Home
Sharing a common home is the most problematic task in the divorce process. The court always pays attention to the fact if the couple has common minor children and if any of the parents is the main custodian. Usually, in families where there are children, in most cases, the marital home gets a parent with custodial rights.
If the couple does not have minor children, the court estimates the market value of the house, after which all debts on this property are deducted from it. The remaining amount is divided between the spouses in accordance with the rule of fair separation. Also, spouses are invited to sell the matrimonial home in the process of divorce and share the proceeds.
Buying a Home When Getting a Divorce in Indiana
When divorcing spouses are faced with the fact that someone must move out of the common house or flat. Of course, there is always the option to rent a new home, but sooner or later you still have to think about buying your own property. In general, while getting a divorce in Indiana, you can buy a house, but there are several nuances. First, such a home can still be considered common because the process of divorce is not yet over. Therefore, you must sign with your soon-to-be ex notarized contract in which he or she completely waives the rights to the new property. Secondly, a court decision may be required to purchase the property; therefore, this issue should be carefully discussed with your lawyer. Approval of the court may be necessary if you plan to buy a house with the help of those funds that have been accumulated in the marriage.