Property Rights Of LGBT Couples

The Indiana Legislature changed the partition action during the 2011-2012 session of the General Assembly. You might ask yourself why I should care. More and more couples are acquiring property both real (real estate i.e. a home) personal (cars, furniture etc.) and intangible (bank accounts, securities etc.) in joint names when they are not married. Of course, we recommend that such couples or other couples, who chose to own property without marriage, enter in to cohabitation agreements to address these issues in advance. We draft such agreements.

If you are not married or if you obtained title jointly with another as a gift or inheritance, and you no longer want to jointly own the property you must end the joint ownership. This can be accomplished by selling the property either to one another or to another person. Of course, with things like bank accounts if you agree then you can divide it up. This is more difficult with property such as investments as they may have different basis or holding periods creating different tax consequences. Typically, this cannot occur if the property is improved real estate, automobiles and the like.

If you cannot agree then an action for partition must be filed in the Circuit Court or court with Probate jurisdiction. After the matter is filed then the court may appoint an appraiser who values the property. The court orders mediation after the appraiser files a report unless the parties agree to mediation without the report. If the parties do not settle this matter in mediation, the Court will order the property sold. While this sounds like a simple process it is not. If one party excludes the other from the property, one moves out on their own, or one excludes one from using the property then there could be requirements for contribution of expenses for maintaining the property, payment of mortgage or loan payments or the fair rental value.

This law does applies to all unmarried couples unless you have documentation covering the property such as a cohabitation agreement, partnership agreement or some other legal form. We have also handled such matters for couples who just did not want to get married or were planning on marrying and did not. Mr. Mann is also able to mediate these matters as he is both a registered civil mediator and a family law mediator. Lisa Joachim and Megan Gehring are also registered family law mediators.