Divorcing couples will need to resolve a number of issues before their divorce can be finalized, including how their assets will be divided. Property division is often a contentious issue in divorce cases since both parties are passionate about getting what they believe is legally (or maybe just rightfully) theirs. If you are in the process of divorcing, it’s important to learn how assets are typically divided during a divorce so you know what to expect.
Which Assets Can Be Divided?
Some states only divide marital assets obtained during a divorce, but that is not always the case in Indiana. In the state of Indiana, the court has the authority to divide any asset owned by either spouse. This includes all assets acquired by:
- Either spouse before the marriage
- The spouses together
- Either spouse during the course of the marriage
Reaching Agreements Outside of the Courtroom
Spouses are encouraged to make an effort to reach an agreement regarding the division of property outside of the courtroom. Doing this allows both parties to have more control over how the assets are divided, but spouses must be willing to work together and make compromises for this to be a success. If the couple cannot reach an agreement, the issue will go to court where a judge will get to decide how the assets should be divided.
Equal Division of Assets
The court will assume that dividing all of the couple’s assets equally between the two parties is the most reasonable and fair way to resolve this issue. Sometimes, this means that each party will receive specific assets that are equal in value. For instance, the wife may be awarded the marital home worth $300,000, and the husband could be awarded other assets of an equal value. In these situations, the court must determine the value of each asset before dividing them to ensure each spouse receives their fair share of assets.
The court can also order the couple to sell all of their assets and then split the proceeds of the sale equally.
Unequal Division of Assets
The general presumption is that a couple’s assets should be divided equally. However, if either spouse does not want the assets to be divided equally, they must submit evidence to the court that convinces the judge to divide the assets in another manner. Some of the many factors that a judge might consider when deciding whether or not to divide the assets equally include:
- What assets each spouse brought to the marriage
- Whether premarital assets were segregated or commingled
- How much each spouse contributed to acquiring of the asset
- Whether or not the asset was a gift or part of an inheritance
- Each spouse’s financial situation, before and after the marriage
For example, if one spouse received a sizable family inheritance, he may argue that it is not reasonable or fair to ask him to split it equally with his spouse. Decisions like these are made on a case-by-case basis, so it’s difficult to predict how the judge will rule. It’s best to speak to an attorney about the specific facts of your situation to determine if there is a likelihood that the judge will deviate from the equal distribution guidelines.
Prenuptial and Postnuptial Agreements
In most cases, a couple with a prenuptial or postnuptial agreement can avoid the hassle and expense of having to fight over the division of their assets. As long as the prenuptial or postnuptial agreement is enforceable, the assets must be divided according to its terms.
If you are planning to file for divorce, or if you are in the middle of a divorce but without representation, you should speak with an experienced divorce attorney today. Our skilled and knowledgeable divorce attorneys will fight to protect your best interests through every step of the divorce process. Contact The Nice Law Firm at 317-269-7311 to schedule a consultation regarding your case.