Because Indiana recognizes no fault grounds for divorce, infidelity alone will not affect the division of property in a divorce. However, there are circumstances under which infidelity may impact asset division, such as when a spouse dissipated assets in order to have or continue the affair. This blog discusses property division in Indiana and how and when infidelity may have an affect on it.
The division of property in an Indiana divorce is controlled by two different statutes; I.C. 31-15-7-4 which describes the property subject to division and I.C. 31-15-7-5, which provides for a presumption of an equal distribution of the property. The first of these statutes defines marital property as any property owned by either spouse before the marriage or acquired during the marriage in their own right, or through the parties joint efforts. This is sometimes referred to as a “one pot theory” of marital property because all of the assets of either party, whether owned before the marriage or not, are included in the marital assets divisible by the court. The second statute, while providing for an equal division of the marital property, recognizes that an equal division might not always be fair and just.
When this is the case, a party may rebut the presumption for an equal division by presenting relevant evidence concerning any of the five factors the court may consider when determining a reasonable distribution of marital property. These factors include: “(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.”
It is factor four, the conduct of the parties during the marriage as it relates to dissipation of marital assets, that may cause infidelity to have an impact on asset division during a divorce. If a spouse spent a large sum of money on his or her affair (gifts, jewelry, vacations, living expenses of the third party, etc.), this could be considered dissipation of assets and the amount already spent on the affair considered a part of that spouses half of the assets. In order to obtain an unequal division of assets based on dissipation, a party would have to prove that the other spent marital funds on the party with whom he or she was having an affair and/or spent those funds in order to have or continue the affair (trips with the third party, hotel rooms, etc.). When gathering evidence of the dissipation of assets, it is important to note that Indiana law prohibits naming or identifying a person with whom a party had an affair or committed any act of misconduct in any family law proceeding.
Identification of the participant in your spouses marital misconduct is governed by two Indiana statutes: I.C. 34-12-2-4 and I.C. 34-12-2-6. The first of these statutes makes it unlawful for a party to file, threatened to file, or cause to be filed any pleading “naming or describing in such manner as to identify any person as… participant in misconduct of the adverse party” in any divorce, child custody, spousal maintenance, or annulment proceeding. The second statute prohibits witnesses from naming or identifying the third party as well as any attorney from asking questions of witnesses that are intended to illicit the third party’s name or information that would identify them. These laws help prevent third parties from becoming involved in other’s domestic disputes.
As you can see, infidelity alone does not affect property division in Indiana divorce cases, and even when circumstances might allow a party to receive more than an equal amount of marital assets, it can be difficult to prove entitlement to an unequal distribution, as well as the amount of assets dissipated by the other party. If you are involved in a divorce and your spouse has dissipated assets while committing adultery, the experienced attorneys at Ciyou & Associated, P.C. can help determine if you are entitled to more than an equal share of the marital estate and how to get it for you.
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.