Marital Property

Marital Property – Indiana

Most parties in a marriage accumulate property, or assets, during the marriage. Indiana courts separate this property into two classifications before the court divides it: marital property and nonmarital property. The Court must fairly, not necessarily equally, divide the marital property of the parties. The Court must apportion to each party his or her nonmarital property, which is not subject to division. The Court will consider the value of non-marital property, however, in its “fairness” analysis when dividing the marital property. Your attorney should be able to assist you in this classification.

Strong financial and accounting backgrounds are a “must” when selecting your divorce attorney. Thomas E. Banks, II graduated as a Dean’s Scholar and in the top tier of his graduating class from the University of Louisville, College of Business. Mr. Banks has a Bachelor’s of Science, Business Degree with a focus in Accounting.

FAQ’s

(1) What is Non-Marital Property?

Non-marital property is a classification of property that must not be “split” by the Court, instead given to the owner party. Below is a list of property descriptions that are non-marital:

(a) Property owned by a party prior to marriage;

(b) Property received as a direct gift to one party;

(d) Property specifically excepted as non-marital by arrangement of the parties, such as prenuptial agreement; and,

(e) Income from properties (a) – (c) so long as the income is not traceable to contributions by the other party.

Remember, some property has components that are both marital and non-marital. For example, the down payment for your home may have come from monies you had prior to marriage, while the remainder of the mortgage payments were made from income you received working during the marriage. If you want to claim that some piece of property, or a portion of a piece of property, is non-marital, the burden is on you to prove that it has the characteristics of non-marital property. A working knowledge of forensic accounting, and auditing, is extremely helpful, if not required.

What is Marital Property?

Marital property, in a nutshell, is all property of the parties’ that is not non-marital property. This property will be subject to division by the Court. Marital property usually compromises the majority of an estate, especially in longer marriages.

How do I value all of this property?

So, you have made a list of your financial holdings. Now, how do you value all of them? More importantly, on what dates should you value your assets? Few clients are property appraisers, so valuation creates confusion. Your attorney should be able to guide you in the valuation process, which is critical to you getting a fair share of the estate.

Most financial institutions keep records more than a decade. Get in touch with your accountants, financial advisors, banking institutions, employers and other financial record-keepers to assist you in this process. Additionally, you may need to utilize personal or real property appraisers to set a “fair market value” on different properties.

Special Property and Must Haves

At Thomas E. Banks, II, PLLC, we always caution our clients that the intrinsic value of property to you usually far exceeds what the market would pay for it. Most people find it hard to stomach what they hear an appraiser thinks the minivan who took the kids to and from school or the bedroom suit that is a family heirloom is worth in the market. Because of this, it is always better to try to cooperate with your spouse during the litigation process and reach an agreement on the division of your personal property and home furnishings.

Most clients have a list of “must have” items. It may be your collector car, your home theater system or your childhood photographs. I encourage you to list these items and give them to your attorney or discuss them with your spouse to determine if a “fight” over these items would even take place. You may be surprised; what means the world to you could be irrelevant to your spouse. If not, and a fight is going to ensue, be sure to do a “cost-benefit” analysis and decide whether the fight will be worth the costs, both emotionally and financially. If so, you will need to take the issue before the Court. When you do, a seasoned attorney should be at your side.