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

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.