Does Indiana Grant Divorces Based Upon Marital Fault?

Presently, there are 15 states that have some version of fault-based divorce.  In those states, fault may be a consideration for granting a divorce, dividing property, or awarding maintenance/alimony.  Indiana is not one of those states.

Indiana merely requires one party to assert that the parties have irreconcilable differences or an irretrievable breakdown of the marriage.   The most common source of “fault” that parties mention is infidelity.

The fact that one party had an affair has no bearing upon a divorce case with two potential exceptions.

How the Affair May Impact the Children

In some cases, while the case is pending the court may issue temporary orders preventing a party from having their significant other around the children. Different judges have different philosophies on this issue, but some certainly believe that the children are going through enough changes as a result of the divorce and don’t need to have any additional uncertainty by bringing in another party to the situation.   Likewise, if there are concerns that the other party’s behaviors with the children are damaging to the children, such as allegations that the significant other is physically or verbally abusive, the court may certainly consider those.

How the Affair May Impact the Dissipation (Misuse) of Marital Assets

The only other time when adultery comes into play is potential arguments about dissipation of assets. By statute, and Indiana court can consider one party’s dissipation of marital assets as part of a property settlement order.

What is dissipation of marital assets?

Dissipation can mean many different things. Dissipation can mean that one party is hiding assets from the other party. Dissipation can mean that one party is spending substantial funds on illegal drugs, strippers or the like. In some cases, one party may develop an argument that the other party is spending a substantial amount of marital funds for the benefit of their significant other.

The court has the discretion to consider these expenses as a reason to give additional money to the spouse without a significant other. A lot of these cases are really a question of degree. If the amount spent is $500 or less on a significant other, it may well be more expensive to litigate that issue than the underlying amount. If the other spouse bought a new car for his significant other using marital funds, then certainly that may be something to raise with the court.

Domestic Violence and Substance Abuse

Domestic violence and substance abuse are very often the underlying causes for divorce. These issues may have a substantial impact on child related issues; domestic violence is expressly part of the statutory factors for determining legal and physical custody.

These issues, with a few exceptions, generally are not a consideration for property settlement agreements, however.  In some cases, a domestic violence victim may file an action for battery against the abuser. This is generally a separate suit from the actual divorce, but, in some cases, is resolved as part of a divorce case. In some cases, a party may allege they have medical bills because of abuse by the other party and may request that the other party be responsible for those medical bills. The court certainly has the discretion to consider expenses that were incurred because of one party’s abuse of the other.

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