USA – INDIANA Law and Practice Contributed by: Andrew Z. Soshnick, Faegre Drinker Biddle & Reath LLP
Trusts If vested, trusts are considered marital property and part of a marital estate presumed to be equally divid ‑ ed. If trust documents do not allow the division of trust property, the trust beneficiary spouse may be ordered to offset other property or make property settlement payments to achieve the overall distribution of the par ‑ ties’ marital estate – see, for example, Loeb v Loeb , Upon the filing of a petition for dissolution of marriage or legal separation, a party may seek and be awarded temporary spousal maintenance (see Indiana Code, Section 31-15-4-1 et seq). Indiana does not have classic post-divorce alimony or spousal maintenance. There are three statutory grounds for spousal maintenance: • physical or mental incapacity of a party to the extent it materially affects a party’s income-earning capacity; • the need to forgo employment to care for a disa ‑ bled child, as well as the lack of sufficient property to provide for needs; and 301 NE 2d 349 (Indiana 1973). 2.4 Spousal Maintenance • rehabilitative maintenance – after considering education, interruption in education, and earning capacity – for a maximum of three years from the date of divorce (see Indiana Code, Section 31-15- 7-2). Spousal maintenance is not often a factor in Indiana divorces. For post-divorce spousal maintenance, incapacity and caregiver maintenance is based on the incomes and expenses of the parties for the duration of the incapacity or caregiver responsibilities. For rehabilita ‑ tive maintenance, the amount is often based on costs for retraining, restoring a licence, or classwork related to returning to the workforce. There are no formulae or calculations to guide the courts. It is wholly dis ‑ cretionary. 2.5 Prenuptial and Postnuptial Agreements Indiana has adopted the Uniform Premarital Agree ‑ ment Act (Indiana Code, Section 31-11-3-1 et seq)
for prenuptial agreements executed after 1 July 1995, and has robust case law that promotes the validity and enforceability of premarital agreements so long as there is no fraud, duress, coercion, or unconscionabil ‑ ity. Case law on postnuptial agreements is less devel ‑ oped and the validity and enforceability of postnup ‑ tial agreements is discretionary and often determined based on whether or not the contract is necessary to extend a marriage that otherwise would be dissolved. The history of the case law for postnuptial agreements has evolved from 1991 to the present date, balancing public policy considerations with freedom-of-contract principles. Courts presume the validity and enforceability of pre ‑ nuptial agreements. It is a more fact-sensitive analysis with postnuptial agreements. For prenuptial agree ‑ ments, see In re Marriage of Boren , 475 NE 2d 690 (Indiana 1985) and its progeny. For postnuptial agree ‑ ments, see Hall v Hall , 27 NE 3d 281 (Indiana Court of Appeal 2015). 2.6 Cohabitation: Division of Assets Between Unmarried Couples Indiana case law treats the separation of cohabit ‑ ing couples far differently than divorce. Only the joint property of the cohabitants is divisible and there is no statutory presumption as to the division of that property. There are no statutory provisions and situa ‑ tions are assessed based on contract, quasi-contract, unjust enrichment, equity, and similar principles. For the history of the development of this common law, see Glasgo v Glasgo , 410 NE 2d 1325 (Indiana Court of Appeal 1980) and its progeny. While there is no statutory provision and only selected case law guidance, the length of cohabitation, roles of each party, economic contribution of each party, non-economic contribution of each party, and other factors may affect how a court divides the property of the cohabitants that is subject to division. 2.7 Enforcement of Financial Orders If a party fails to comply with a financial order, the other party may file a motion to enforce the financial order. That motion may seek enforcement by contempt (not applicable to money judgments), compelling compli ‑ ance with the terms of the divorce decree, an income
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