Is Indiana a “no-fault divorce” state?
Yes. Well, mostly.
First, what on earth is a “fault” divorce? It’s always somebody’s fault, right? The truth is that while, yes, there may be one party that carries more of the blame, state law may not consider that pertinent.
In states like California, parties divorcing can greatly alter the property split if they can prove things like infidelity. Prove being the key word. “No fault” states often feel that allowing parties to argue over things like infidelity in court leads can lead to unhealthy behaviors like stalking and surveillance.
Imagine the things you would do if you had to prove your soon-to-be ex was cheating on you.
To answer whether or not Indiana is a “no-fault divorce” state, let’s look at the Indiana statute governing the grounds for divorce. It reads:
Dissolution of marriage shall be decreed upon a finding by a court of one (1) of the following grounds and no other ground:
- Irretrievable breakdown of the marriage.
- The conviction of either of the parties, subsequent to the marriage, of a felony.
- Impotence, existing at the time of the marriage.
- Incurable insanity of either party for a period of at least two (2) years.
The vast majority of Indiana divorces are based on Ground No. 1, irretrievable breakdown. To meet this standard, one party must swear under oath that the marriage is so bad it can’t be fixed.
If you testify that the marriage can be saved, will the court weigh your testimony against your spouse? Not that we’ve ever seen. Once one party convinces a judge that they believe the marriage is irreconcilable, the other spouse can’t stop the divorce. You may be able to slow the case down. You can make it more painful, more expensive. But you can’t stop it.
Why? Because a marriage with only one person in it is like the sound of one hand clapping. You can’t have a marriage without two spouses.
In divorces that are based on this ground, the Court is limited on the blameworthy conduct that it can consider. It can’t consider how your feelings were hurt – no matter how much that damaged you psychologically.
The Court can consider behavior that affects the children’s best interests. If your spouse had sex with someone else during the marriage, no matter how much that hurt you emotionally, that fact usually can’t be put in evidence. The existence of infidelity is not relevant.
But if the kids saw your spouse kissing, hugging, or making out with the new lover, the Court may be able to consider that in order to determine child custody and parenting time.
The Court can also consider bad behavior that reduced size of the marital estate. Examples of conduct that courts have considered include:
- Expensive hobbies like racing and horse shows,
- Expensive gifts or large monetary transfers to family members,
- Money spent vacationing with or gifts purchased for a new love interest,
- Marital assets to fund drug or alcohol addiction, and
- Attorney fees to defend criminal charges.
Getting a divorce because your spouse has a felony conviction is clearly fault-based. This ground for divorce does not require a serious felony like murder or rape. Even a Level 6 conviction can be grounds for a divorce. Level 6 crimes include possession of a controlled substance, driving while impaired (with a prior conviction), fraud, forgery, neglect of a dependent, and theft.
This ground for divorce reflects the historical view that the purpose of marriage is procreation. But it is still on the books. Impotence is a medical condition, so it’s not blameworthy. But think hard before you use this one. Filing a public document that tells the world your spouse is impotent is very risky.
Our attorneys have more than 40 years of combined experience as divorce lawyers. Yet, we have only filed one case that was based on the grounds of impotence – and the other side contested the allegation. We recommend staying away from this one.
Although many people getting divorced believe their spouse is crazy, satisfying this legal standard is incredibly difficult. Low-level mental health issues like depression and anxiety won’t cut it. The combination of today’s medications and various therapies can manage and improve even the most serious mental illnesses. Most people will never meet someone who qualifies as legally insane.