By Sara Pitcher
Cordell & Cordell Indiana Divorce Lawyer
This presumption may be rebutted with the presentation of evidence by either party that an equal division would not be just and reasonable.
What Constitutes Marital Property?
The contribution of each spouse to the acquisition of property can include monetary contributions to the family’s estate through income, but it can also be considered the value of services provided by the parties to the family’s estate.
This can include the value of cooking, cleaning, and other services that were provided at no cost by one of the spouses because if that spouse had not made that contribution, the parties would have had to pay someone to provide those services.
Even though property may have been acquired prior to the marriage, in some states, that does not mean that the property is the exclusive property of the party bringing the property into the marriage. All property, regardless of ownership by one party prior to the marriage, becomes the joint property of both spouses after the marriage.
Just because an item is joint property does not mean that it must be divided equally. The court may look to the treatment of the property during the marriage to determine whether it is just and reasonable to divide the property between the parties or to set it off to one party completely.
If the property was kept solely in the name of the one party and was not used or treated as marital property, the court may decide to set it off to the one party who inherited it or brought it into the marriage, although, this is a somewhat rare occurrence.
The court will often look to whether increased expenses were taken out of the parties’ joint property so the inherited property did not have to be used. If that is the case, the property kept separate will likely be divided, maybe not equally but in some fashion, to provide for the spouse not in possession of the separate property since expenses were paid out of the joint property to allow the separate property to remain untouched.
Is Your State Community Or Equitable?
Dissipation of Assets
Another consideration is whether one spouse dissipated or disposed of assets. Dissipation of assets is considered a waste of marital property by misusing it or spending or using it in a wasteful manner.
Even though in many states parties will not be “punished” for being unfaithful during their marriage by receiving a smaller portion of the marital property, it is possible for extravagant spending on a third party during the marriage to be considered dissipation of marital property.
The amount determined to be dissipated will be set aside to the spouse determined to have dissipated the property and taken out of their share of the property. Giving away property or selling it for below value could be other ways to dissipate property.
Who Gets What?
The parties may reach an agreement in the form of a property settlement agreement to divide the marital property in a fashion determined by them to be just and reasonable, or the court will make a determination based on the factors determined by state statutes.
Where I practice, several factors that may be considered and addressed through the presentation of evidence include:
- The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing;
- The extent to which the property was acquired by each spouse either before the marriage or through inheritance or gift;
- The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children;
- The conduct of the parties during the marriage as related to the disposition or dissipation of their property;
- The earnings or earning ability of the parties as related to a final division of property; and
- A final determination of the property rights of the parties.
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