USA – INDIANA Law and Practice Contributed by: Andrew Z. Soshnick, Faegre Drinker Biddle & Reath LLP
pending. Statutory and common law precedent are a guide in each of these instances.
• a present right to withdraw pension or retirement benefits; • the right to receive pension or retirement benefits that are not forfeited upon termination of employ ‑ ment or are vested (as defined by Internal Revenue Code (IRC), Section 411), but that are payable after divorce; and • the right to receive disposable retired or retainer pay (as defined by 10 United States Code (USC), 1408 (a)) acquired during the marriage that is or may be payable after divorce (Indiana Code, Sec ‑ tion 31-9-2-98). Just and Reasonable Division Marital property is to be divided in a just and reason ‑ able manner, and can be divided in kind, by setting aside the property of one party to the other party, ordering the sale of property, or ordering the distri ‑ bution of pension or retirement benefits (see Indiana Code, Section 31-15-7-4). Courts presume that an equal division of all marital property is just and rea ‑ sonable, but that presumption may be rebutted by consideration of relevant evidence, including consid ‑ eration of five statutory factors: • the contribution of each spouse to the acquisition of property, regardless of whether or not the contri ‑ bution was income producing; • premarital, gifted, or inherited property; • the economic circumstances of each spouse; • conduct leading to the disposition or dissipation of property; and • the earnings or earning ability of the parties (Indi ‑ ana Code, Section 31-15-7-5). Courts look for meaningful reasons to deviate from the presumed equal equitable distribution. Most courts require financial declarations stating under oath the identity and value of all marital assets and liabilities. Parties may also conduct discovery such as depositions, interrogatories, requests for pro ‑ duction of documents, and requests for admissions (see Indiana Trial Rules 26, 30, 31, 33, 34 and 36). There also is the right to request documents from non- parties (see Indiana Trial Rule 34 (C)). Courts have the authority to enforce discovery compliance from par ‑ ties and non-parties (see Indiana Trial Rule 37).
2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings As mentioned in 1.2 Choice of Jurisdiction in Divorce Proceedings , one party must be a resident of a county (or stationed at a US military installation within the county) in the State of Indiana for three consecutive months and of the State of Indiana for six consecutive months for subject-matter jurisdiction over a divorce (Indiana Code, Section 31-15-2-6). There also must be personal jurisdiction over the responding party (see Indiana Trial Rule 4.4 (A)). A party to divorce proceedings involving property divi ‑ sion may contest jurisdiction for lack of subject matter or personal jurisdiction or to allege that a court does not have jurisdiction over property. A party may request a stay of proceedings to pur ‑ sue divorce property division proceedings in a for ‑ eign jurisdiction if there is a lack of subject matter or personal jurisdiction or if there is a lack of jurisdiction over property. Statutory and common law precedent are a guide. Courts hear financial claims after a foreign divorce court enters property orders, generally, to enforce for ‑ eign orders. Courts do not typically revisit the foreign orders, but there can be more scrutiny given to orders from non-Hague Convention countries. 2.2 Service and Process in Financial Proceedings See 1.1 Grounds, Timeline, Service and Process . 2.3 Division of Assets Marital Property By statute, marital “property” is defined as all assets (and liabilities, per case law interpreting the defini ‑ tion of marital property) of either party or both parties, including:
313 CHAMBERS.COM
Powered by FlippingBook