What is Part of the Marital Estate?

The marital estate is subject to being divided in a divorce, but what is included in the marital estate? In short, almost everything is included. Assets owned before the marriage; assets acquired by joint efforts; and assets acquired by an individual spouse after the marriage, but before final separation, are all included in the marital estate.

In Indiana, there is a presumption that equal division of this property is just and reasonable. However, that presumption can be rebutted which could lead to the court deviating from a 50/50 division. To show the court that a 50/50 split of the property would not be just and reasonable, a party must present evidence regarding certain factors found in Ind. Code 31-15-7-5. Those factors include:

1. How much each spouse contributed to the acquisition of property;
2. The extent to which the property was acquired by either spouse before the marriage or though an inheritance or gift;
3. The economic circumstances of each spouse at the time distribution will be made. This factor also includes a determination on whether the family residence should be awarded to the spouse who has primary custody of the children;
4. Whether either party disposed of property during the marriage in a way that would make it unfair for that spouse to gain property as a result of the divorce; and
5. The earning and earning ability of each spouse.

How do these factors work in practice? Well, let’s say you received a $50,000 inheritance and never comingled it with joint marital accounts. A court may award you the entirety of that asset under factor 2(B). Another example may be that you have built up a sizeable retirement fund before the marriage. Depending on the circumstances, a court may split that in a way they believe is equitable (such as 70/30) rather than equal (50/50).

Asset division can be very complex, so if you are going through a divorce, contact the Shelbyville divorce attorneys at McNeelyLaw today. Call us at 317-825-5110 to talk to an experienced divorce attorney who can help navigate you through your case.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.