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Dividing Property in a Divorce

Dividing Property in a Divorce

by | Estate Planning, Family Law

Like most other jurisdictions, Indiana is an equitable distribution state. Upon divorce, marital property must be equitably distributed between the spouses. Equitable is usually, but not always, the same thing as equal.

Only marital debts and assets are subject to equitable division between the spouses. Thus, before a South Bend divorce lawyer can fairly divide the marital estate, debts and assets must first be classified as marital or nonmarital. Frequently, this classification and division process is either the simplest or most complex portion of a marriage dissolution matter.

Classifying Property

In Indiana, marital property consists of any and all assets acquired before the marriage or during the marriage, regardless of which spouse acquired the property or how the asset may be titled. The martial estate also includes all debts incurred before or during the marriage.

Premarital agreements, which are covered by the Uniform Premarital Agreement Act (UPAA) in Indiana, can, by agreement, pre-classify debts and assets as marital or nonmarital. Prenuptial agreements also often address matters like spousal support amounts and inheritance issues.

Dividing Property

When dividing a martial estate in Indiana, the court starts with the presumption that a 50-50 division is equitable, and this presumption is quite strong. With that said, courts in Indiana can view a number of factors, which can persuade a court to deviate from the presumptive 50-50 division and divide the marital estate in some other way. These factors include:

  • Standard of living during the marriage,
  • Relative earning capacity of each spouse,
  • Length of the marriage,
  • Dissipation (waste) of marital assets,
  • Noneconomic contributions to the relationship,
  • The economic circumstances for each spouse after division of the marital estate; and
  • Custody of minor children and the desire of allowing the children to remain in the family home.

The classic example is the former homemaker spouse who has limited earning capacity, custody of minor children, and a large mortgage payment to make.

Typically, judges approve most out-of-court property settlements. These resolutions reduce legal fees, give the parties more control over the outcome, and avoid the drama of an emotional courtroom showdown.

Both spouses have legal and financial rights in property division matters. For a confidential consultation with an experienced South Bend divorce lawyer, call THK Law at one of our three locations – South Bend, Elkhart, or Cassopolis. Convenient payment plans are available.

Eric W. von Deck, South Bend Litigator, Real Estate Attorney, Tuesley Hall Konopa, LLP

Author: Partner, Eric W. von Deck, is a family law, civil litigation, personal injury, insurance defense, and real estate attorney at THK Law, LLP. He litigates family law matters such as divorce, child custody and child support.

You can contact Eric by calling 574.232.3538 or email evondeck@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Risks When Purchasing Real Estate in a Tax Sale

Risks When Purchasing Real Estate in a Tax Sale

by | Litigation

A recent unpublished court of appeals opinion, Finkton v. Auditor of Marion County, is a cautionary tale for purchasers of real estate recently involved in a tax sale. The story of this case gives a flavor of the risks facing such a purchase. In Finkton, a non-profit organization purchased a parcel of real estate from the City of Indianapolis, which had acquired the parcel after it had been offered, but not sold, in the 2010 tax sale in Marion County. The non-profit invested money to improve the property. Sometime later, the prior owner whose interest in the property had been divested through the tax sale filed a petition to void the tax deed, which, if successful, would have voided the non-profit’s interest in the property.

The court faced a big mess. Between the time the parcel was offered for sale at the tax sale and the non-profit acquired title from the City, a lot happened to muddy the waters. The prior owner filed for Chapter 13 bankruptcy during the redemption period and prior to the City obtaining its tax deed; the City erroneously voided the tax deed, re-offered the parcel at the 2011 tax sale, withdrew the parcel from the tax sale and re-applied for and obtained a tax deed; and the City erroneously accepted over $6,000 from the prior owner purportedly to redeem the parcel from the 2011 tax sale. The non-profit intervened in the litigation. Its interest in the parcel was in jeopardy and all because of events that had transpired between the City and the prior owner.

In the end, the court upheld the validity of the tax deed and the non-profit kept the parcel. But to get that result, the parties no doubt expended a lot of time and money in litigation costs. With this case in mind, it is no wonder that most title companies refuse to insure title vested through a tax deed. There is just too much risk. Not only is there the risk that title will be voided, for example, if the procedural requirements of the tax sale statute were not followed but there is also the risk of costly litigation to defend the title, even if that litigation is ultimately successful. A purchaser of a parcel recently involved in a tax sale should seek legal advice to understand and sort out these risks.

Eric W. von Deck, South Bend Litigator, Real Estate Attorney, Tuesley Hall Konopa, LLP

Author: Partner, Eric W. von Deck, is civil litigation, personal injury, insurance defense, and real estate attorney at Tuesley Hall Konopa, LLP. He also litigates family law matters such as divorce and child custody, and support issues.

You can contact Eric by calling 574.232.3538 or by email evondeck@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.