USA – INDIANA Law and Practice Contributed by: Drew Soshnick, Faegre Drinker Biddle & Reath, LLP
the other party, ordering the sale of property, or ordering the distribution of pension or retire - ment benefits (see Indiana Code Section 31-15- 7-4). Courts presume that an equal division of all marital property is just and reasonable, but that presumption may be rebutted by consideration of relevant evidence, including consideration of five statutory factors: • the contribution of each spouse to the acqui - sition of property, regardless of whether the contribution was income producing; • premarital, gifted, or inherited property; • the economic circumstances of each spouse; • conduct leading to the disposition or dissipa - tion of property; and • the earnings or earning ability of the parties (Indiana 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 production 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 author - ity to enforce discovery compliance from parties and non-parties (see Indiana Trial Rule 37). Trusts If vested, trusts are considered marital prop - erty and part of a marital estate presumed to be equally divided. If trust documents do not allow the division of trust property, the trust ben - eficiary spouse may be ordered to offset other property or make property settlement payments to achieve the overall distribution of the parties’
marital estate – see, for example, Loeb v Loeb, 301 NE 2d 349 (Indiana 1973). 2.4 Spousal Maintenance Upon the filing of a petition for dissolution of marriage or legal separation, a party may seek and be awarded temporary spousal mainte - nance (see Indiana Code Section 31-15-4-1 et seq). Indiana does not have classic post-divorce ali - mony 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 disabled child, as well as the lack of sufficient property to provide for needs; and • rehabilitative maintenance – after consider - ing 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, inca - pacity and caregiver maintenance is based on the incomes and expenses of the parties for the duration of the incapacity or caregiver responsibilities. For rehabilitative maintenance, the amount is often based on costs for retrain - ing, restoring a licence, or classwork related to returning to the workforce. There are no formulae or calculations to guide the courts. It is wholly discretionary.
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