Franklin, IN asked in Divorce for Indiana

Q: I was made to leave my home by husband for girlfriend, home in his name can i make him sell in divorce ?

He made threats for me to leave the home, then found he had a girlfriend. He made me leave 2 weeks before christmas so she could stay at our home. I would honestly like to know if i would be able to make him sell the home or something ?? What can i do ? Anything? we have been married 11yrs Sept 1. We have not filed for divorce yet. Honestly yes i am not happy he moved this girl in to live in our home of 10yrs with my children, it is not right and i want to know what i can do if anything . I would greatly appreciate your help ~ He did physically abused me and was charged

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2 Lawyer Answers
Gojko Kasich
Gojko Kasich
Answered
  • Hebron, IN
  • Licensed in Indiana

A: 1. It appears that you bought the home during marriage. What funds did you use? Was there a down payment made and subsequent mortgage payments? If so, it is highly likely it will be considered marital property. If he bought it "cash" at the time of purchase with his funds that he had kept separate prior to your marriage, a judge will decide pursuant to two key Indiana family law statutes:

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IC 31-15-7-4 Division of property

(a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:

(1) owned by either spouse before the marriage;

(2) acquired by either spouse in his or her own right:

(A) after the marriage; and

(B) before final separation of the parties; or

(3) acquired by their joint efforts.

(b) The court shall divide the property in a just and reasonable manner by:

(1) division of the property in kind;

(2) setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper;

(3) ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale; or

(4) ordering the distribution of benefits described in IC 31-9-2-98(b)(2) or IC 31-9-2-98(b)(3) that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.

IC 31-15-7-5 Presumption for equal division of marital property; rebuttal

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the parties.

Burton A. Padove
Burton A. Padove
PREMIUM
Answered
  • Highland, IN
  • Licensed in Indiana

A: Absent a prenuptial agreement, most property, whether in his name or yours, or obtained during or even before the marriage is considered marital property absent a few exceptions such as inheritance. There is a presumption that there should be a 50/50 split. That presumption can be rebutted. In my experience, the main factor for rebutting the presumption in a marriage such as you described is

a disparity in income. Generally, if you have the children, the court is most likely to award the house to you. If you cannot afford the mortgage and he can, it may be awarded to him. Regardless, it is the overall value of the marital estate that is divided. If there are not enough liquid assets to divide, the court may order that the house be sold.

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