Protecting Separate Property in Indiana

Indiana takes a unique "one-pot" approach to property division—under Ind. Code 31-15-7-4, courts must include all property owned by either spouse in the marital estate, regardless of when or how it was acquired. This includes premarital assets, gifts, and inheritances. Whether you're heading into an uncontested or contested divorce, understanding the 50/50 presumption, five deviation factors, and filing-date cutoff is essential.

The One-Pot Theory: Everything Goes In

Unlike most states that exclude "separate property" from division, Indiana requires courts to include all assets in the marital pot:

• Premarital property: Assets you owned before your wedding
• Gifts and inheritances: Property received from family or others during marriage
• Solely-titled assets: Property in only one spouse's name
• Joint property: Assets acquired together during the marriage

Key point: While everything goes into the pot, the source of an asset can justify an unequal division or "set-over" to one spouse. Proving source through documentation is your primary protection strategy.

The 50/50 Presumption: Starting Point, Not Guarantee

Under Ind. Code 31-15-7-5, courts presume an equal division is "just and reasonable." However, this presumption can be rebutted with evidence on five statutory factors:

• Contributions: Each spouse's contribution to acquiring property (income and non-income producing)
• Source: Property acquired before marriage or by gift/inheritance
• Economic circumstances: Each party's financial situation, including custodial parent's residential needs
• Dissipation: Conduct related to disposing or wasting property
• Earnings: Each spouse's earning ability going forward

The Filing Date: Your Classification Cutoff

Indiana's "final separation" date is the date the dissolution petition is filed—not when you physically separate. This date determines what goes into the pot:

• Pre-filing acquisitions: All property owned as of the filing date is included
• Post-filing acquisitions: Property acquired after filing is generally excluded
• Valuation flexibility: Courts can value assets on any date between filing and final hearing

This means earnings and assets acquired after you file for divorce typically stay out of the pot.

Set-Over Strategy: Keeping What's Yours

While everything must go into the pot first, courts can "set over" specific assets entirely to one spouse. To achieve a set-over for inheritances or premarital assets:

• Document the source: Probate records, gift letters, account statements showing original deposits
• Show minimal spousal contribution: Evidence that your spouse didn't contribute to acquiring, preserving, or improving the asset
• Maintain segregation: Keeping inherited funds in a separate account strengthens your position
• Track the asset: Title history, deed records, and transaction documentation

The Indiana Supreme Court in Fobar v. Vonderahe confirmed that even with documented inheritances, courts can still divide 50/50 if the overall result is equitable considering all factors.

Retirement Accounts: Coverture Fraction

Indiana courts typically apply a coverture fraction to isolate the marital portion of retirement benefits:

• Formula: Marital portion = Plan value × (months during marriage ÷ total months of accrual)
• Premarital contributions: The premarital portion and its growth can be treated as non-marital
• QDRO implementation: Use qualified domestic relations orders to divide without immediate tax

Estimate Your Indiana Divorce Costs

Property disputes can significantly increase divorce costs, especially when valuations and tracing are needed. Indiana filing fees are typically $157. Use our calculator to estimate your total expenses:

Practical Protection Strategies

• Document everything: Keep records proving source of inheritances and gifts
• Maintain separate accounts: Don't deposit inheritances into joint accounts
• Track contributions: Document who paid for improvements or maintenance
• File strategically: Assets acquired after filing are generally excluded
• Get expert help: For significant assets, hire a forensic accountant

Key Takeaways

• One-pot theory applies: All property goes into the marital estate first
• 50/50 is presumptive: But rebuttable with evidence on five statutory factors
• Source matters: Gifts, inheritances, and premarital assets can justify set-over or deviation
• Filing date is the cutoff: Not physical separation
• Documentation is key: Proving source is your primary protection strategy

For the complete Indiana property division guide and divorce timeline, see our detailed resources. For official court forms, visit Indiana Courts Self-Service Center.