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Property Settlements in Divorce

Updated on June 15, 2010

How Marital Property is Divided

By Andrew J Thompson

There are two unique ways different states allocate ownership of marital property. In a community property state, property is considered to be owned in a communal manner within a marriage, so that each party is equally entitled to every asset owned. Whether purchased, inherited by or gifted to a husband or wife, property is considered to be an asset of the marital estate, not of the individuals who happen to be married.

Most states, like Indiana, are common law states. In a common law state, the law considers how the property was acquired, and also looks upon the marital estate as a collection of assets owned by individuals rather than the estate itself.

In either case, this may lead to some interesting, and depending on which side of a case you are on - either beneficial or frightening divisions of property when a couple divorces. But there are certainly many, many nuances within the law that govern unique and various situations.

Finding Hidden Assets

When couples divorce, suspicion follows. Something caused trust to break down between a pair who pledged to spend their lives together. Sometimes the parties allow their differences to break trust and arouse suspicion too easily, and this leads to a situation where suspicion pervades the atmosphere. The degree of suspicion varies widely - from absolute disbelief in anything the other party says, to a causal indifference and determination to move beyond this moment in their lives.

Because people can be just as wrong in distrusting another person as they can in trusting that person, there is a significant risk that any effort to make a case of the other spouse's dishonesty will be counterproductive.

At the same time, there are certainly many cases where assets have been intentionally, or at least covertly, shielded from view even to the other spouse, and this causes the appropriate division of assets to become highly problematic.

The starting point for any discovery of assets in the dissolution of marriage is financial declarations of both parties. Whether the state in which the divorce is handled requires these or not, they are helpful discovery tools in any divorce.

Once both parties have shared or filed declarations, a basis for comparison is available. This is very telling. There are almost always differences in the parties' accounting for assets, unless the parties are preparing them together in an uncontested action.

Where there are differences, a picture will begin to emerge as to why. For example, let's say Mr. Abbott works a full time job as an engineer, and has a secondary consulting business each spouse contends makes very little money. On Mrs. Abbot's declaration, she shows the existence of his business but a very sketchy picture of income and expenses, and no assets. On his declaration, he shows much more expense than she was aware of, and claims office furnishings, a vehicle and other assets belonging to the business.

In a way, this should be an easy situation to examine and should present a flag for any investigator of the facts to look into the situation more closely. But there is also an important conclusion to be drawn from these facts - one person or the other is clearly wrong here and there is a reason. That reason is either dishonesty or the lack of good information gathering by one spouse or the other. If the husband is wrong, it is fairly likely due to dishonesty, because he has taken the time to gather more facts and kept more records than the wife. If she is wrong, it is likely to be the other way around.

This is not meant as a common indictment of men in marriage, i.e. to say that they are dishonest and their wives are innocent bystanders, it can just as easliy be the opposite. But whichever spouse has the most to lose from full disclosure, is the one who is more likely to fail to disclose information.

Determining when this has occurred, how much deviation exists and where it is to be found requires the work of a skilled attorney, and additional, financial professionals to properly assess and piece together the correct information.

This process involves a thorough review of a series of important financial records, including tax returns, loan documents, documents in the formation of a business, its accounting records, and many others.  It's important to hire a skilled and experienced hand in these matters to help you draw the most appropriate conclusions about the true financial picture in the marriage, and recommend the best disposition. 

For assistance from experienced and skilled legal counsel, and professional accounting and financial experience, representing clients in divorce in Indiana, and providing assistance to divorcing individuals through financial and legal analysis throughout the country, contact the Thompson Law Offices at (317) 269-3422 for an initial assessment of your personal situation.  Start moving down the path toward the best division or property in your divorce you can obtain today. 

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