A lot of mystery seems to surround the division of assets when parties file for divorce and call the end to the marriage. Numerous questions arise. Do I get to keep family heirlooms I brought into the marriage? Does my spouse get a part of my 401(k) as he or she has her own? If our marriage has only lasted a few years, and I brought most of the assets into the marriage, do I get to keep them? This blog answers these questions generally by discussing Indiana’s one-pot theory and the presumption of an equal division of assets.1
Perhaps the most confusing concept for divorcing parties is Indiana’s one-pot theory. Under the one-pot theory, all assets each party brought into the marriage and those acquired during the marriage come into one “marital pot” and are mixed together for the court to divide.2 In as much, it does not matter how a particular account, parcel of land, or automobile is titled, it is all in the marital pot subject to division. There a few narrow exceptions, such as certain pensions, that are excluded by federal law, but these are uncommon. A key part of the assets in the marital pot is that the court is to presume an equal one (all you have, minus what you owe, and divide by two) between the divorcing parties.
All of that said, the trial court is ultimately charged with a just and equitable division. In some cases, a presumptive equal division works a hardship on a party and the trial court can deviate for any fair reason. However, to obtain an unequal division in your favor, you need a skilled lawyer that can advocate why such a division is fair and necessary. This is done through evidence at trial and a sound trial theme this evidence supports of why an unequal division is not fair. Suppose the parties have a large age disparity and one spouse is near or at retirement and the other spouse has several years of useful work-life left. In this case, because of the future limited earning power of the more senior spouse, the trial court could make an unequal division for the older spouse.3 The younger spouse would simply have more time to make money before resorting to retirement funds. A classic case where a trial court may make an unequal division and effectively return the parties to where they were when they married is in a marriage of extremely short duration (months).
Ultimately, Indiana trial courts have a vast array of statutory tools to fairly divide any marital estate. However, the court is limited to what it can do and why to the evidence presented before it. Thus, it is key to have a skilled divorce attorney help you prepare your trial theme and request for an unequal division and put on the necessary evidence for the court to consider—and hopefully adopt—your position. Simply wanting an unequal division and testifying to same is unlikely to be successful. Dixon & Moseley, P.C. advocates handle divorce cases throughout the State. We hope this blog makes you a better educated legal consumer. It is not intended to be legal advice or a solicitation for services. It is an advertisement.
