Yes, it all goes in . . .
That is the general answer to the one question asked when people find themselves
going through a dissolution . . . “are they going to be able to get half of my stuff?”
Pursuant to Indiana Code 31-15-7-4 the court “shall” divide the property whether it was
owned by either spouse before the marriage, acquired by the parties jointly, or acquired
by either party individually, after the marriage and before final separation.
In other words, all property is generally going to be included in the “marital pot.”
Indiana cases have repeatedly reinforced the idea that all assets be included in the
“marital pot” when it comes to divorce.
While the presumption is generally yes, the division of marital property is a multilayered
determination and whether or not property is included is just the first step.
That presumption of including everything as marital property can be challenged or
rebutted. A party can argue that property should not be included in the “marital pot” or
that if it is included, it should not be equally divided. The party challenging has the
burden to show that the statutory presumption does not apply to the property in
question. This argument of keeping property out has been successful, for example, in
cases where one spouse owns a bank account for a child’s college education.
Many times, parties build businesses or acquire other marital assets while the other
party makes no contribution to the acquisition of that asset. While a party may request
that the court set aside the value of the asset, the court IS NOT required to do so.
While pensions, trusts, and retirement plans may be included, Indiana courts have
determined that the benefit must be vested any payable at the time of dissolution and
the benefit must not be forfeited with the termination of employment. It is very important
to understand the terms and conditions under which you may receive payment and
know that if your ability to access the funds in a trust, pension, or retirement account are
too remote, are based upon a qualifying condition that has not occurred, or you cannot
access the proceeds at the time of dissolution, you may have a very strong argument for
excluding those benefits from the marital estate. Are you faced with an impending divorce and want to protect your assets the best way possible? Give our office a call at 317-870-0019!
