But That’s MY Retirement Account!

A common and widely held misconception when Indiana residents are considering divorce is that the name on the title of a specific piece of property indicates who will own it after the divorce. This is not so. Indiana is a “one pot” state which means that everything individually owned by each spouse and jointly owned by the parties all gets poured into a single pot. It is that pot that is subject to division during divorce.

If you do not have a premarital or prenuptial agreement, everything that you own or that your spouse owns is part of the pot or “marital estate”. Imagine a large black cauldron. Now place into the cauldron all real estate, vehicles, cash accounts, retirement accounts, personal property, whole life insurance policies, business interests and every other kind of property. Also place into the cauldron all credit cards, mortgages, loans, debts and financial obligations. On the day that either spouse filed for divorce, put the lid on the pot and close it. Whatever is inside on the date of filing is the marital estate that the court will divide between the parties.

While it can be difficult to accept that a piece of property that you brought into the marriage or a retirement account in your individual name is part of the pot, Indiana law does not remove from the pot items earned in one person’s name or brought into the marriage by one person. When dividing the marital estate or pot, the court must start with the presumption that an even division of the pot is fair. This does not mean the each individual asset is split in half….this would be very impractical for the division of your coach and coffee maker! Instead, a whole asset or debt can be set aside for one spouse while something of equivalent value is set aside for the other spouse. There are reasons to vary from an even division, so you should talk to your attorney about whether the facts of your case qualify.

Work with your attorney to identify each piece of property and debt that is in your marital pot. There is likely a division of that pot which is fair and meets your reasonable needs and interests.

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