Imagine a cooking pot large enough to hold everything you own. Into that pot you will place every piece of property and every debt to be divided during your divorce regardless of whether the property and debt is in wife’s name, husband’s name or in joint names. This is the essence of Indiana’s legal “one pot” theory.
The divorce process requires making a list of everything that you and your spouse own and everything that you owe. This list helps your attorney assess how you and your soon to be former spouse will become separate financial entities. While you will not take a buzz saw down the middle of each asset or equally divide each individual debt, you and your attorney will be working on a fair and equitable division of the whole list of assets and debts.
Gathering the information needed to make your list is one of the primary homework assignments that your attorney will give you during your divorce. That process begins with making a list of all assets and debts which exist as of the date of filing of your divorce, and is usually followed by gathering documents such as mortgage statements, credit card statements and retirement statements to determine the value or amount owed for each.
There is a common misconception that only assets that are titled in both spouses’ names and debts in both names (like a joint home mortgage) should go on the list. In fact, the name on an asset or debt is irrelevant as long as that asset or debt exists on the date that one spouse files for divorce. Indiana law considers all property owned and debt owed jointly or individually by either spouse to be part of the total list of things divided. That means that even an asset or debt in your individual name or in the individual name of your spouse should go on the list.
Retirement accounts earned entirely by one spouse and credit cards in the sole name of one spouse are not left out. All assets and debts that exist on the date a divorce is filed are part of what is called the “marital estate” or “marital pot”. Indiana law views the efforts to obtain assets and the actions which create debts to be attributable to the marriage as a whole even if one spouse was the primary person responsible.
A state like Indiana which follows the One Marital Pot theory has divorce laws which do not consider the name on an asset or debt, whether it was acquired by one spouse acting alone or even if it was brought into the marriage by one spouse. Everything goes into the pot and will be divided during divorce.
So when assisting your attorney with making the list of your assets and debts, include everything no matter whose name is on it or when it was acquired.