Filing for Divorce <br />& Asset Protection

Filing for Divorce
& Asset Protection

How to protect your assets and divide expenses
after filing for divorce

Filing for divorce isn’t an easy decision. You may have questions like, “Who is going to pay the mortgage?”, “What do I do if I think my spouse is hiding assets from me?”, and “Can I be found at fault?”

To help alleviate some of the worry, here are some guidelines to help you understand (1) what happens to your assets after you file for divorce, (2) if there is any benefit to being the first one to file, and (3) how you will likely divide the bills, debts, and expenses.

Who is at fault?

Indiana is a “no fault” state. This means a judge, when issuing a ruling, will not consider whose fault it is, and won’t try to figure out whether it was you or your spouse who “caused” the divorce. Typically, you can cite an “irretrievable breakdown of the marriage” as grounds when filing for divorce.

In Indiana, other (rarely used) grounds on the books include:

  • criminal conviction of either you or your spouse after you are married,
  • impotence existing at the time of your marriage, and
  • incurable insanity of either you or your spouse for a period of at least two years.

What if I’m the first one to file?

Even if you’re the first to file for divorce, don’t expect special treatment. Because Indiana is a no fault state, the judge will not reward you for being the first to file. But he or she also won’t “punish” you if your spouse is the first to file.

That said, the date you file for divorce is significant. Assets or debts you and/or your spouse acquired before the date of filing are divisible by the court, but assets or debts either you or your spouse acquired after the date of filing typically are not.

As you might remember from a previous post, Indiana follows what is known as the “one pot” theory—when divorce is filed, both your and your spouse’s assets and debts are combined and then allocated based on what you and your spouse decide. If you are unable to reach an agreement, a judge will presume that a 50-50 division is fair.

So, when it comes to filing for divorce, timing is everything.

What if my spouse is hiding assets or racking up debt?

If you are concerned that your spouse is racking up debt, spending frivolously, or selling, giving away, or trying to hide assets, you may want to file the divorce as soon as possible. Make sure you talk to an attorney about requesting a temporary restraining order on assets (TRO).

A TRO—which may be automatically issued by your judge—prohibits both you and your spouse from transferring, encumbering, concealing, selling, or otherwise disposing of marital property without the written consent from both parties or from the court. Requesting and obtaining a TRO is the most effective way to protect marital assets at the beginning stages of a divorce.

After filing, who pays the bills?

Trying to figure out who will pay for what can be stressful. Thankfully, you can ensure that your marital estate is maintained while your divorce is pending. You can request from the court a provisional (preliminary) order that will set forth the responsibilities for payments of debts and expenses, including, but not limited to:

  • the mortgage,
  • utilities,
  • vehicles loans, and
  • credit card payments.

The court also may require you or your spouse to continue providing health, life, or auto insurance to the other until the divorce is final.

Don’t be surprised if the court also requires you to pay temporary spousal maintenance and/or temporary child support during the pendency of litigation. This ensures that the financial needs of both you and your spouse—and your children—are met. Such a provisional order is temporary and will terminate upon the final divorce decree.

To learn more, or to talk to someone about when to file for divorce or what happens to your assets after filing, contact Abigayle Hensley at 765-742-9066.

The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be, nor is it, legal advice to or for any particular person, case, or circumstance. Each situation is different, and you should consult an attorney if you have any questions about your situation.

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