Infidelity and the Indiana Divorce Process
In the context of a divorce, infidelity is often one of the most difficult topics for couples to face, both while they are married and after their relationship has officially ended. While some people may assume this means that infidelity can play a role in a divorce settlement, this is not necessarily the case. To understand the role of infidelity in a divorce in the state of Indiana, consider the following:
Infidelity as Grounds for Divorce
In Indiana, infidelity is no longer considered grounds for divorce. Indiana state law only allows for the argument of having "irretrievably broken" your marriage, preventing you from filing for divorce unless you can prove that you have genuinely tried to repair your relationship using counseling or other efforts. If you and your spouse have split up and you believe it is truly over , you can file for divorce without any detailed explanation of why you are ending your marriage.
Infidelity and Alimony
Regarding alimony, infidelity usually has little impact on a divorce settlement, regardless of who cheated or when the act occurred. If you are the lower-earning spouse and you believe your spouse is at fault for the dissolution of your marriage, this cannot legally be used against them during the divorce. That said, because of the time and money related to an infidelity, a judge may consider which spouse is better financially able to pay alimony and make decisions based on this information.
The Grounds for Divorce in Indiana
Indiana divorce law provides that a spouse must have the proper legal grounds before they can be divorced. The law provides only 2 different categories under which a spouse can ask for a divorce – these are the legal grounds for divorce. The two categories are fault based divorces and no-fault divorces.
Fault based divorces are those where a spouse claims that the other spouse’s bad acts caused the marriage to end. There are five specific types of bad act claims that are recognized by Indiana law. These are: Often a spouse will claim a different type of marital misconduct, such as gambling, drug abuse or abuse of the children, and ask the court to grant them a divorce based on these other claimed bad acts. In almost all cases, the court will not grant the divorce based on these other claimed sins. Rather, the court will usually conduct a hearing or trial after giving the parties an opportunity to present their evidence. At this hearing, the court will decide whether to grant the divorce and, if so, which party is at fault.
Most divorces are filed under the no-fault – or, in other words, the victim or injured spouse gets to blame the separation on their spouse. In a no-fault divorce, either spouse can ask for a divorce simply by saying that there has been an irretrievable breakdown of the marriage. In other words, there is no repairing or improving the marriage.
No-fault divorces are granted by the trial court. Usually the court will grant the no-fault divorce after conducting a short hearing to determine whether the spouses have agreed that the marriage cannot be saved and that the divorce should be granted to one or the other spouse.
In almost all cases, a spouse is going to file for a no-fault divorce. Usually, after a period of time passes, and the court finds that the spouses have irreconcilable differences, the court will grant the divorce and order either party to pay any spousal support or order the property to be divided. In some cases, however, the court will not grant the divorce until a spouse reveals that they have violated one of the five listed grounds for divorce.
Effects of Infidelity in an Indiana Divorce Process
Infidelity can also affect a divorce settlement, but the impact will depend on whether the infidelity revealed does not rise to the level of adultery. Extramarital sex becomes adultery when it is proven, which is much more difficult to do than simply knowing about or finding proof of an affair in other states. Indiana courts generally do not take extramarital activities into account if they have not caused any other harm to the marriage. If the discovery of cheating has caused the couple significant heartache and unable to repair the damage done, however, the rejected spouse may be more able to use the revelation of infidelity to their advantage when negotiating a settlement. Adultery may also impact the division of property, but dividing marital assets in Indiana is based on an equitable division of the damages and assets. If the extramarital activities of one spouse have caused a unique damage not otherwise measurable to the marriage, then the courts may factor that into the settlement. For example, if the cheating spouse has incurred significant expenses during the affair, then the court may divide up the marital assets in order to compensate for the loss and protect the non-cheating spouse from paying for the breach of trust the other caused.
Infidelity at Trial
To substantiate an adultery accusation before an Indiana divorce court, a spouse must provide evidence. The family law attorneys of Kimmons & Forney have substantial experience handling infidelity-based divorce cases throughout the state and can help you get the results you desire.
While any type of legal evidence may be acceptable to prove adultery, some of the more common forms include: While some people may not like the idea of hiring a private investigator, this is often the best option because it yields admissible evidence. A private investigator can legally follow your spouse, take videos and photographs of them in a compromising position or with someone who seems to be their lover, and obtain the necessary documentation and evidence needed for your case.
Witness statements can also be useful in proving infidelity , as a witness may see your spouse abusing substances with, having sex with or taking even seemingly minor actions with someone else fulfilling the definition of adultery. Witnesses can testify about many things that have happened over the course of a relationship, and the credibility of their statements is only limited to how much weight a judge will give to them. You will need to have the names and addresses of any witnesses you intend to present.
Obtaining financial records such as bank statements and health club memberships is also important, if they reveal expenses that seem to be part of an affair. Any suspicions that your spouse wasted rightfully marital assets on someone else can be a strong factor working in your favor in the "marital waste" provision of your divorce, which could help ensure that you receive a bigger percentage of your marital assets.
Counseling and Reconciliation Options
Indiana divorce law provides for counseling and reconciliation alternatives to the dissolution of the marriage in certain circumstances. A party may request the court to order counseling to determine if there is a genuine possibility of reconciliation. Further, Indiana courts may suspend the dissolution proceedings upon a showing by the parties that there is a reasonable prospect of reconciliation. If the court is satisfied that the marriage may be preserved, it must continue the proceeding for 30 days and stay all further proceedings. It will appoint a qualified counselor to confer privately with each party and, if requested, jointly with both parties. The parties will be responsible for the fees assessed by the counselor appointed by the court. At the end of this 30 day period, or upon an earlier date, the court dispatcher will again schedule the hearing [or schedule a new hearing date, whichever is applicable] on the complaint for dissolution of the marriage.
Some judges have courts encourage divorcing couples to participate in collaborative divorce or mediation as a way to minimize conflicts related to property division and co-parenting disputes. These judges have local rules that require the parties to attempt mediation before any family law hearing is held. However, many judges believe that requiring mediation as part of the divorce process is inappropriate. Practitioners need to be prepared to argue their position respectfully with the judge who presides over the case.
Mediation has some advantages, in that it is less expensive and much quicker than the contested alternative. Its greatest benefit lies in the fact that the two parties receive greater input and really make the ultimate decisions about how their family will be reorganized, even if a third party (the mediator) helps them to accomplish their goals. Also, the mediator is unaligned and assists both parties in "win-win" situations. Mediation also will have a positive effect on the relationship between the parties after the divorce.
Collaborative divorce is generally a multi-disciplinary approach, which means the attorneys often enlist other professionals such as accountants, mental health professionals, etc., to assist in solving problems created by the divorce and finding creative solutions to the family’s issues. In collaborative law, attorneys provide assistance, and clients have a structured environment in which to negotiate a resolution to their divorce. The parties agree to resolve their issues without litigation (meaning no court orders or filings) and can be held in contempt for seeking court intervention. With this process, each party retains another collaborative lawyer as part of his or her team. Sometimes other collaborative professionals, such as mental health practitioners or financial professionals may also join the team. These practice groups are different from the vast majority of cooperatively litigated divorces, also known as "good divorce" cases. The collaborative law process is entirely voluntary, and if the consulting attorney is needed, the collaborative process terminates.
Consult With An Indiana Divorce Attorney
When dealing with the complexities of a divorce that involves infidelity, the importance of obtaining legal representation before you begin negotiating a settlement cannot be understated. While hiring an attorney is never a guarantee that you will win your case, an attorney will always ensure that the law is applied properly and if it is not, represent you aggressively. For instance, an attorney will be familiar with Indiana’s infidelity laws and ensure that any evidence you offer as INFIDENCE of infidelity is relevant and admissible. An attorney will also know what evidence is inadmissible and ruls of order. Ideally, your attorney will go into court knowing 90% of the equations needed to effectively present your case.
When searching for a divorce attorney in Indiana to help you negotiate a divorce settlement, there are a couple of factors to keep in mind . First, look for an attorney who has been practicing for several years. While overall experience is important, what you really want to find is a lawyer who has focused on a practice area that matches your needs. For infidelity cases, a divorce attorney who specializes in marital affairs or infidelity cases and has practiced for a decade is your best bet to provide quality representation.
Second, choose an attorney who makes you feel comfortable. An infidelity case will likely be a personal matter. The depth of information required by the court can be daunting. You should feel comfortable sharing your past with your attorney and confident that he or she will advocate for your interests.
Finally, always check client reviews when selecting a lawyer and trust your instincts about whom to trust with your case.