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IBA: What Every Woman Should Know to Protect Herself in the Event of Divorce

February 15, 2012

By Amy Carson, Laura Gaskill, Robin Kelly and Gloria K. Mitchell, all of Mitchell & Associates

Advising clients contemplating divorce varies with the style of the attorney. Even so, there are fundamental issues every woman considering or beginning the divorce process should know to protect herself financially. 

Divorce Fundamentals. Indiana is a no-fault state, meaning that the reason for the divorce is not relevant to the court. The Petition for Dissolution of Marriage generally states that there has been an irretrievable breakdown of the marriage and it should be dissolved. After the petition if filed, there is a required 60-day cooling off period before the divorce can be final.

Date of filing. The date a Petition for Dissolution is filed is the date a court looks at to determine what is in the marital estate, both assets and debts. Any assets acquired/earned or debts incurred after the date of filing will generally not go into the marital estate and belong solely to the party who accrued the asset or incurred the debt.

Division of Assets. Indiana follows the “one pot theory,” meaning that any assets or debts brought into the marriage, or acquired during the marriage, are included in the marital estate, unless there is a prenuptial agreement indicating otherwise. The presumption is that the marital estate is divided 50/50; however, either party can attempt to persuade the judge that 50/50 would not be fair.

Spousal Maintenance. Indiana is not an alimony state, which means a court cannot order that alimony be paid unless the parties both agree that alimony should be paid; since the payment of alimony may be financially advantageous to both parties, this kind of agreement is uncommon. Spousal maintenance, however, can be ordered by the court. There are three instances when a court can order that one spouse pay maintenance to the other. These include the following: when a spouse is the custodian of a child with physical/mental incapacity such that it impairs that spouse’s ability to work; or if a spouse is physically/mentally incapacitated such that he/she cannot work; or if a spouse is in need of rehabilitative maintenance because he/she needs training or schooling in order to re-enter the workforce.•

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