Indiana law requires an equitable division of property in a divorce. However, “equitable” does not mean “equal,” and it can be difficult for courts to divide property when separate and marital property is commingled.
Marital property is that which is acquired during marriage, while separate property is what a spouse owns prior to marriage or acquires by gift or inheritance during the marriage. Even so, a judge has the discretion to divide the couple’s property in any way that seems fair, regardless of when it was acquired or who actually owns it. Commingling happens when separate and marital property is mixed.
Factors that may be considered when dividing a couple’s property unequally would be:
- Economic situation of each spouse;
- Each spouse’s current earnings or earning potential;
- Conduct that resulted in dissipation or loss of property;
- Each spouse’s contributions to property acquisition or income.
In the recent case of Dant v. Dant before the Indiana Court of Appeals, division of property was at issue. Wife appealed trial court’s award of 69 percent of net marital estate to husband, while granting her just 31 percent. Trial court stated that when it excluded assets husband had prior to marriage, the division was approximately 53 percent to him and 47 percent to her.
Although wife presented much evidence refuting the findings of the trial court, the appeals court noted it could not reweigh or consider new evidence. It could only review for abuse of discretion, and it found none.
According to court records, the pair were married in 1991 and filed for Indiana divorce in 2014. Prior to marriage, husband worked as a sheriff’s deputy and, from 2003 through 2010, served as a local elected sheriff. During this time, he earned about $85,000 annually. However, after he was not re-elected, his salary dropped to $32,000 and later to $28,000 while serving as a patrol deputy. That was still his occupation/pay grade at the time of the divorce.
Wife worked for a large auto manufacturing firm, and has consistently earned about $100,000 annually since 1992.
Husband had a pension plan valued at $1.1 million, and he was drawing $5,000 a month from it at the time of divorce. He also had other retirement accounts valued at a total $119,000. Wife’s retirement plan was valued at a total of $410,000. Additionally, the pair owned four parcels of rel estate, including the marital residence.
In dividing the property, the court awarded wife the marital property and one other, while awarding husband the two remaining. The ultimate division was unequal, but that doesn’t necessarily mean it was unfair.
It’s important for those in the midst of a divorce to make sure they have adequate legal representation because it’s difficult to have such decisions reversed at the appellate level. The appeals court has held that division of marital property is within the sound discretion of the trial court, which means the only way to reverse is for abuse of discretion. This occurs when:
- Decision was clearly against logic and effect of the facts and circumstances;
- Trial court misinterpreted the law
- Decision discharged evidence of factors listed in controlling statutes.
Even when there are reasonable inferences and facts that could lead to a different conclusion, the appellate court isn’t going to substitute its judgment for that of the trial court. There is a strong presumption faced by the appellant that trial court complied with statute. Even in cases where one or more findings is clearly erroneous, the appeals court can affirm if the judgment is supported by other findings or evidence on record.
Here, court acknowledged wife’s monetary and non-monetary contributions to the marriage, but there is no legal authority that says the court had to assume those contributions were expressly for the husband’s benefit. Further, the court did not find an abuse of discretion regarding trial court’s award of two properties to the husband, even in light of wife’s ample evidence that one of those properties was purchased by the couple during the marriage. Appeals court declined to reweigh the evidence.
Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond. Call Toll Free 877-446-5294.
Dant v. Dant , Oct. 30, 2015, Indiana Court of Appeals
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Stekr v. Beecham – Deviation from Child Support Guidelines, Oct. 25, 2015, Hammond Divorce Lawyer Blog