When someone is going through a divorce in Indiana, part of what a Judge will do is divide the marital estate of the divorcing spouses. It is not uncommon for people who are divorcing to wonder what specifically the Court will consider when dividing the things the spouses have and whether certain items will be divided by the Court. The general question we often get asked is, “What do divorce courts do?”
In any divorce case, the Judge will be tasked with dividing the property of the divorcing spouses. This will include things items that were owned by either spouse before the individuals got married, acquired by either spouse in that spouse’s own right after the marriage and before the parties’ final separation, or acquired by their joint efforts. The types of property that Court usually divide include things such as real property, bank accounts, retirement accounts, vehicles, and debt.
When dividing the divorcing spouses’ items, the Court is required to divide it in a “just and reasonable manner”. This can include by dividing the property in kind, requiring a payment be made from one spouse to the other to offset how property is divided, order the property to be sold and then require a particular division of the sale proceeds of the property, or require certain retirement benefits to be paid after the divorce is finalized when permitted by the retirement plan.
In Indiana, there is a presumption for how the Court should divide the items between divorcing spouses. The presumption every Court begins with is that the items should be divided equally. However, this presumption can be rebutted by either party who is able to present evidence that would show that an equal division would not be just and reasonable. This can include evidence showing how each spouse helped contributed to the acquisition of property, regardless of whether the contribution was income producing, whether the property was acquired by either spouse before the marriage or through inheritance or gift, the financial circumstances of each spouse at the time the division of property is to be effective, including the desirability of awarding the family home to the spouse who is awarded the custody of the kids, the conduct of the parties during the marriage as it relates to the disposition or dissipation of the property, and the earnings or earning ability of the parties. This list, however, is not an exhaustive list.
After the property of divorcing spouses has been divided and ordered by the Court, the Court has various powers in which it can enforce its Orders. This can include enforcement through contempt, an income withholding order, or any other remedies that are available for enforcement of a Court Order. Oftentimes, a Court may use a commissioner to help force the sale of real estate is one party is not cooperating with the sale of the house.
If you or someone you know needs assistance relating to your family law case, consulting with a family law attorney regarding your options can be helpful. The family law attorneys at Banks & Brower, LLC can help with your case. Give us a call at (317)-526-4630 to help you navigate your case.
