Do I Have to Show Fault to Get a Divorce in Indiana?

Do I Have to Show Fault to Get a Divorce in Indiana?

The short answer is “NO”. Indiana recognizes no fault-divorce. Ordinarily, one party alleges an “irretrievable breakdown” of the marriage. This is not to say, however, that the court will automatically grant a divorce based on an irretrievable breakdown of the marriage, or that you will not end up in court attempting to prove the other party is at fault for something, such as dissipation of assets (this is fault in some respects). This blog discusses Indiana’s no-fault divorce grounds and circumstances where the parties might still need to show fault during a divorce.

Indiana Code § 31-15-2-3 lists the four grounds for divorce, the first of which is an “irretrievable breakdown” of the marriage. This is the most common ground cited to in divorce petitions in Indiana. When alleging an “irretrievable breakdown”, no fault must be proven by either party, just that one party believes the marriage is “irretrievably broken” and you can no longer live together as husband and wife. The court will consider the marriage “irretrievably broken” if there is no possibility of reconciliation. One party testifying that reconciliation is not possible entitles the party to a divorce on this no-fault ground.

Even when seeking a no-fault divorce, couples often find themselves in court arguing “fault” for other reasons in the property division or custody of the children. These are separate issues from entitlement to a divorce, by an “irretrievable breakdown” of the marriage and adjudicated in the divorce proceedings. Property division and child custody are the reason divorcing parties generally seek a divorce, and showing “fault’ as it were is key to attaining your legal objective. To do so, retain a domestic attorney.

The Statute governing division of marital property is Indiana Code § 31-15-7-5. This statute dictates that the court shall assume an equal division of the property is just and reasonable. However, this presumption may be rebutted by presenting evidence concerning the controlling statutory factors: “(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing. (2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift. (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children. (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property. (5) The earnings or earning ability of the parties as related to: (A) a final division of property; and (B) a final determination of the property rights of the parties.

If you seek an unequal division of property, you need work with skilled domestic counsel to carefully develop the evidence of why and equal division of the property is not just and reasonable. This takes a lot of preparation and work before a trial. Just testifying in court, you seek an unequal division will not work. You have to put evidence on to show an equal division is not just and reasonable.

Custody determinations are made pursuant to Indiana Code § 31-17-2-8 in which there is no presumption in favor of either parent, and the court will make a determination based on the best interests of the children. When deciding what the best interests of the child are, the court considers a list of factors contained in the code. As with property, if you seek sole physical and legal custody, you have to develop the evidence and put it on a trial so show why it is in the children’s best interests. Merely telling the court what you want is a sure-fire recipe to fail to reach your custody objectives. A skilled domestic counsel spends his or her workdays developing such evidence for trial.

So, while you do not have to prove fault to get divorced, you will still need a skilled domestic attorney to help you navigate the different statutes and determine what the issues are based on your legal objectives and how to “work up” this evidence for trial, which may require showing fault in some regards; again this has nothing to do with obtaining a divorce based on “irretrievable breakdown” of the marriage. The experienced attorneys at Ciyou & Associates, P.C. can help you in a no-fault divorce when there are contested issues such as child custody and property division.

This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.


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