Divorce, by its very nature, can be a difficult process. The emotional toll can be significant on all who are involved, particularly when we consider that most people are unfamiliar and uncomfortable with the court system. Beyond the normal difficulties, however, same sex couples can face additional challenges – property division is one of them.
Indiana is not a community property state, where property is automatically split equally between the divorcing spouses. Instead, it follows the concept of equitable distribution. While equitable distribution can result in a distribution of property that is equal, it doesn’t have to. The court’s primary concern is one of fairness, rather than equality.
At the outset of the divorce process, the court will seek to classify all property as either separate or marital property. Separate property will remain with the spouse who owned it, while marital property will be subject to equitable distribution.
The potential problem for same sex couples
When the court seeks to distribute property equitably, there are a number of factors it considers. Among them are the length of the marriage and the contributions made by each spouse throughout the marriage. But same sex couples have only recently been legally permitted to marry. As a result, difficulties can arise when trying to apply equitable distribution.
For one thing, a same sex couple may have been living together, as a married couple, long before the law recognized them as such. The contributions made by each spouse can predate the legal marriage by many years. How, then, will the court calculate those contributions when it is limited to the legal length of the relationship? Untangling this knot can be difficult, requiring the assistance of an experienced and knowledgeable professional.