USA – INDIANA Trends and Developments Contributed by: Drew Soshnick, Faegre Drinker Biddle & Reath, LLP
is and what is not marital property. While courts, by statute and case law, can deviate from the presumptive equal division of marital estates on the basis of gifted, inherited, and premarital property, the proponent of the deviation bears the burden of proof. That has ruffled the feath - ers of many who believe that Indiana should have a separate property classification that is non-marital in status. Independently, this issue is not likely in the offing. But, if spousal main - tenance reform advances, the entire equitable distribution scheme may be on the table for the legislature. Prospect of statutory guidance on postnuptial agreements Another area of potential development relates to postnuptial agreements. Indiana has not adopt - ed a version of the Uniform Marital Property Act that provides for postnuptial agreements. As a result, case law from 1991 to 2017 has left some confusion as to the validity and enforceability of such agreements. Although recent appellate decisions focus on whether this type of contract, if valid and enforceable, will preserve and extend a marriage that otherwise would be dissolved, the application of this standard has proved elu - sive and undefined. While only a handful of states have adopted stat - utes regarding post-marital agreements, con - flicting case law in Indiana suggests the appro - priateness of the legislature to consider statutory guidance. That effort is unlikely to be made in 2025, but look for it to be raised at some point in the coming years. Prioritisation of adoption laws Also, adoption laws are under scrutiny in this session of the Indiana General Assembly. Bills to reduce the time for a party to withdraw consent
to an adoption are almost certain to make it to committee and may advance further. Much litigation has arisen throughout the years in the context of adoption consents, with some dif - ficult outcomes for children. Legislators appear to have taken note and made this topic one of priority in their agenda. Impact of socioeconomic and demographic changes on divorce law From a socioeconomic and demographic per - spective, Indiana is changing. What was once a largely agrarian and manufacturing economy is now rapidly converting to a service economy. Healthcare, life sciences, and IT have emerged in the Bloomington to West Lafayette corridor, including Indianapolis. Fort Wayne and Evans - ville are diversifying their economies. Even northwest Indiana, near Chicago, a long-time hub of industrial businesses, is adapting to more service offerings. The result of this conversion is the emergence of new businesses, venture capital, and private equity that drives sophisticated valuation issues in divorce cases. Gone are the days of only valu - ing a farm or tool company. Now, the most com - plex valuation issues arise with some frequency upon divorce. Courts are grappling with new concepts, and experts are learning and devel - oping skills that were once the province of valu - ation professionals on the US coasts or in more notable emerging markets. The Indiana govern - ment solicits these new ventures and, with a low tax rate and business incentives, is drawing new enterprises to the Midwest. This growing business sector means that com - plex valuation issues involving venture capi - tal, private equity, an assessment of personal goodwill (not a marital asset under Indiana law)
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