Division of Marital Property: What to Expect, and How We Can Help

Having an attorney whom you trust is critical in navigating any legal matter, but this is especially true if it involves a divorce. What should you expect during the process of dividing marital property? How can the attorneys at McKinney & Malapit Law help you?

The Marital Estate

Generally speaking, the judge will divide all marital assets and debts (also commonly known as the “marital estate”) in a fair and equitable manner. The marital estate includes all property that either spouse owns at the time the divorce petition is filed. This includes property acquired by gift or inheritance, property owned prior to the date of marriage, property jointly owned, property that the spouse has a contingent interest in (that he/she will own after a certain event occurs), business interests, and any tangible and intangible property. This broad definition of the marital estate includes property that many people assume is not included.

Equal Division of Marital Property

The court has a great deal of discretion in dividing the marital estate. When doing so, the court is required to divide the assets and debts equitably. It is presumed that a fair division of the marital estate is an equal division. In many ways, this makes sense. During marriage, financial decisions are frequently made with the intention to benefit both spouses. Money earned by both parties is used to pay for joint marital expenses (e.g., mortgage, food, utilities, childcare, and vacations). With that in mind, it would be reasonable for the assets and debts of the marital estate be divided equally.

Unequal Divisions of Marital Property

However, unique issues frequently arise when couples have received property by gift or inheritance during their marriage. While a marriage is strong, these issues aren’t even considered. But when a marriage is struggling, suddenly the ownership and division of this property becomes a critical concern. Inherited property can vary from a family cottage, a piece of jewelry, or life insurance proceeds received from a parent or grandparent. Should this property be divided equally as a part of the marital estate? In many cases, there are compelling arguments why they should not be divided as a part of the marital estate. McKinney & Malapit Law can help protect and keep your treasured property separate.

Similarly, issues with equal division are common when dividing property owned prior to marriage. Again, most couples don't consider what might happen to that property if their marriage falls apart. This type of property is commonly a home that a spouse already owned or a retirement plan that a spouse was contributing to for years prior to the time of marriage. When is it appropriate for this property to be divided in an unequal manner? In addition, how do you separate this comingled property in a fair and reasonable way? Allow the attorneys at McKinney & Malapit Law to assist you in keeping your pre-marital property separate.

Another reason that a court may choose to award an unequal division of the marital estate is due to dissipation. Dissipation is the use of the marital estate for an illegal or inequitable purpose (e.g., wasteful gambling, to pay for an extramarital affair, or sudden, large gifts to family members). In such instances of dissipation, the court has the ability to make an unequal division that it finds is fair and reasonable to account for transfers of marital property that are for purposes entirely unrelated to the marriage or which are intended to subvert an equal division of the marital estate. McKinney & Malapit Law can help you to build a case against any wasteful spending or sneaky gifts and help you fight for a fair division of the marital estate.

Factors Supporting an Unequal Division

When requested, a court will consider dividing property in an unequal manner and will order that the marital estate be divided in that fashion only when the judge determines that it is fair and reasonable to do so.

The parties are always free to come to an agreement to divide their property as they wish. This is frequently done in a pre-nuptial agreement (also known as an ante-nuptial agreement) or post-nuptial agreement. But, if an agreement cannot be reached, the judge will consider a number of factors when ruling on a request to deviate from the presumption of an equal split. These statutory factors include*:

  1. Contribution. The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income-producing.

  2. Inheritance or Gift. The extent to which the property was acquired by each spouse before the marriage, or through inheritance or gift.

  3. Economic Circumstances of Each Spouse. 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.

  4. Disposition or Dissipation. The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

  5. Earning Capacity. 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.

McKinney & Malapit Law is here to help you fight for a fair division of your marital estate. Contact us at your convenience for a consultation to review the unique circumstances of your case. 

*Source: Ind. Code § 31-15-7-5.

Joshua A. Brown is a partner at McKinney & Malapit Law who primarily practices family law. He received his JD from Ohio Northern University and is admitted to practice in the State of Indiana and the U.S. District Court, Southern District of Indiana.

McKinney & Malapit Law is a general practice firm serving all of Indiana out of its Fishers and Muncie offices.

The information in this article/on this website is made available by the attorney or law firm publisher for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. By using this information, you understand that there is no attorney client relationship between you and the attorney, law firm, or publisher. The information should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.