Step 5: Dealing with the major issues
Division of Property and Debt
According to the Indiana law, the division of property in the case of a divorce must be equitable, which means that the division may not necessarily be equal but must be fair. Although according to the Indiana law, there is a distinction between marital property and separate property, the judge can divide the property of both spouses in any way that is fair, irrespective of when the property was bought or which spouse owns the property.
The court presumes that the equal division of all property is fair unless one spouse claims that a property is separate and presents evidence that the division of that property is unfair. The Indiana law downplays the importance of distinguishing between marital property and separate property and sometimes both may get mixed together, which is known as “commingling”. For instance, a house that is owned by you can become marital property if your spouse and you make the mortgage and other payments.
If your spouse and you are unable to decide what property belongs to whom, the judge will decide whether the property must be treated as separate property belonging to one spouse only. The court may consider other factors when deciding that it is more appropriate to divide the property unequally rather than an equal division.
- Contribution of each spouse to the acquisition of the property which may produce income or not.
- Economic situation of each spouse.
- Earnings or earning capability of each spouse.
- Conduct of the spouse resulting in the dissipation or disposal of the property.
- Giving the family home or allowing the spouse who has the custody of the children to live in the home for a reasonable length of time.
The judge will also consider any tax liabilities of the property division on the economic situation of each spouse. And, in the case that there is little property or no property to divide and if one spouse has contributed financially to the post-secondary education of the other, the judge may order the contributing spouse to get a reimbursement.
In the case that your spouse and you make your own agreement, then you can divide the property in whatever way you want. Some parties may have a premarital agreement which lists which property is marital and which is separate and this makes dividing the property easier.
In any one of the situations, the court may award permanent maintenance:
- If the spouse seeking maintenance is incapacitated either mentally or physically that affects the ability to support himself/herself.
- The spouse does not have sufficient property to meet his/her needs and the spouse has the custody of a child whose mental or physical incapacity prevents the spouse from taking up employment.
In case the court finds that there has been a break in the education, employment or training because of childcare responsibilities or those as a homemaker and the spouse needs time to either get an employment or continue his/her education, it may award rehabilitative maintenance for a period of up to 3 years.
There are 2 aspects of child custody in Indiana – physical custody and legal custody. Physical custody is the decision who the child will live with and legal custody is which parent has the decision-making power. In determining both these, the court will consider the factors that are in the best interests of the child before making a decision, including:
- The child’s age and sex.
- Wishes of the parent(s).
- Wishes of the child if he/she is at least 14 years old.
- Interaction and relationship of the child with the parents, siblings and any other significant person.
- Adjustment of the child to his/her community, home and school.
- Physical and mental health of all concerned individuals.
- Any instance of family or domestic violence by either of the parents.
- If the child has been taken care of by a custodian.
Parents are obligated to support their children who are non-emancipated until they are 19 years old in Indiana. The child support is determined on the basis of:
- Weekly income of both spouses.
- Number of overnights the child is with the parent who does not have custody.
- Evidence of children born subsequently or other maintenance or support obligations.
- Child care expenses that are work related.
- Health insurance premium paid.
You can fill the Child Support Obligation Worksheet by using the child support calculator which is based on the Child Support Guidelines of Indiana.