Domestic violence can affect divorce proceedings in Indiana in a few ways, including the outcome of property division orders, the award of spousal maintenance, and child custody and parenting time determinations. Issues regarding orders of protection, criminal charges, and child protective services may also arise in a divorce where domestic abuse is being committed by one or both parties. This blog discusses the effect of domestic violence on divorce proceedings in Indiana.
The state recognizes only four grounds for divorce, all of which are considered “no-fault” grounds, meaning that a party filing for divorce need not prove any misconduct on the part of their spouse for the court to grant the divorce. Grounds for divorce include an irretrievable breakdown of the marriage, the conviction of either of the parties, after being married, of a felony, impotence, existing at the time of the marriage, and incurable insanity of either party for at least two years (I.C. 31-15-2-3). While domestic violence is not included as a ground for divorce, it may be a consideration of the court when making determinations on specific issues of the divorce, such as child custody and parenting time, the division of property, temporary or protective orders, and spousal maintenance. When the party committing the acts of domestic violence is controlling, as many abusers are, divorce proceedings may also be delayed due to requests for orders of protection, intentional delays caused by the controlling spouse, additional hearings required to settle disputes over protective or no-contact orders, or the abusive spouse’s removal from the home.
Child custody orders are governed by the custody order statute (I.C. 31-17-2-8) which provides that custody determinations shall be made in accordance with the child’s best interests, with the court considering all relevant factors, including those listed in the statute. Listed factors include the physical and mental health of all parties and evidence of a pattern of domestic violence. The court considers all factors effecting the child’s best interests, weighing each according to the evidence presented and how the child has been effected by the particular circumstance. If the court grants primary physical custody to the parent who has allegedly been abused, the other parent shall be entitled to reasonable parenting time, unless the court finds, after hearing, that it might endanger the child’s physical health or significantly impair his or her emotional development (I.C. 31-17-4-1). When a parent has been convicted of a crime involving family or domestic violence witnessed by the child, the court may order supervised parenting time for at least one year and not more than two years (31-17-2-8.3).
Alimony, or spousal maintenance as it is called in Indiana is governed by the findings concerning maintenance statute (I.C. 31-15-7-2), which provides three reasons that maintenance may be ordered by a court: mental or physical incapacity of the spouse requesting maintenance, the spouse’s lack of sufficient property to care for his or her needs while caring for a custodial child whose incapacity requires the parent to forego employment, and a disparity in income, earning capacity, and educational levels of the parties, especially if due to one spouse’s homemaking or child care responsibilities which caused an interruption in training, education, or work experience. If a spouse is incapacitated as a result of injuries incurred while being abused by his or her spouse or lacks the education, training, and work experience required to obtain employment allowing him or her to support themselves because of their spouses control and abuse, an award of spousal maintenance may be granted although domestic violence is not mentioned in the statute. However, proving either of these scenarios in court could be difficult and you may need to consult an experienced attorney if you plan to pursue maintenance solely because of the domestic violence that occurred in your marriage.
The division of property in a divorce is governed by two statutes, one which defines the property subject to division, and the other providing for an equal division of the property unless a party can prove that an equal division would not be just and reasonable. Property subject to division by the court includes all property of the parties whether acquired before or during the marriage, by one parties sole efforts, or by the joint effort of both parties (I.C. 31-15-7-4). A party wishing to prove that an equal division would not be reasonable must present relevant evidence, including evidence concerning one or more of the factors provided in the rebuttal of presumption for equal division statute (I.C. 31-15-7-5). These factors include, but are not limited to, the economic circumstances of each spouse at the time the disposition of the property is to become effective, the conduct of the parties during the marriage as related to the disposition or dissipation of their property, and the earnings or earning ability of the parties as related to a final division of property. When a parties economic circumstances and/or earning ability has been impaired by an abusive spouse, they have incurred medical bills as a result of injuries caused by their spouses abuse, or their spouse regularly destroyed personal property while committing acts of violence against them, the court may find that an equal distribution of property is unjust and unreasonable and award the abused spouse a larger percentage of the assets.
Finally, domestic violence may lead to delays in the divorce proceedings when orders of protection are requested and granted. Because Indiana courts will combine any protective order against a spouse with the divorce proceedings, all hearings on issues regarding the order of protection will be held in the divorce court, which may cause finalization of the divorce to be extended beyond the required or necessary time frame. Abusive partners are oftentimes very controlling and may intentionally stall the divorce process by refusing to comply with discovery requests, failing to appear for hearings, or filing numerous unnecessary motions. The effect of domestic violence on divorce proceedings in Indiana can be quite significant, effecting the rights of everyone involved. It is strongly recommended that you consult with an experienced family law attorney when divorcing an abusive partner or a spouse who has wrongly accused you of domestic violence.
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.
