Indiana recognizes only four grounds for divorce or dissolution of marriage.1 The state now has one no-fault ground and three which require proof of fault. It is one of only a few states that does not recognize infidelity as a ground for divorce. This blog explores the different grounds for divorce available and why you might choose to use one over another.
The most commonly used ground for divorce in Indiana is an “irretrievable breakdown” of the marriage. Many movies and television shows call this “irreconcilable differences”, which is what a “no fault” divorce is called in some states. When filing a petition for divorce alleging an “irretrievable breakdown” of the marriage, you do not need to prove that anyone is at fault, just that there is no reasonable possibility of reconciliation, namely an “irretrievable breakdown” in the marriage.
In cases where the court finds that reconciliation may be possible, it may continue the proceedings and order the parties to attend counseling.2 An order to seek counseling is very rare, however, and generally one party’s contention that they can no longer live with the other as husband and wife is sufficient to prove an “irretrievable breakdown” and the court will grant your divorce.
This is due to Indiana court rulings that the marriage must be taken as a whole, and no specific act or acts of one of the parties should be considered when determining if there is an irretrievable breakdown.3 Fault-based grounds for divorce is also a basis for divorce in Indiana and include:
- the conviction of either party of a felony, subsequent to the marriage;
- impotence existing at the time of the marriage; and
- incurable insanity of either party for at least two years.4
The first of these grounds, the conviction of either party of a felony during the marriage, is rather easy to prove, and one might choose to use this ground if child custody is an issue and the felony committed by their spouse is one that would pose a risk to children. While a valid ground for divorce and it is occasionally cited as a basis for divorce, it is rarely used. This is because an “irretrievable breakdown” ordinarily part-and-parcel of a felony conviction if it involved the child or the child’s safety in anyway.
The second fault-based ground, impotence existing at the time of the marriage may be more difficult to prove, unless your spouse will admit to it, and very few will. This simply is not cited in Indiana as a basis for divorce, but it could be in the right situation. It should be noted that there is no real advantage to using this ground for divorce, as Indiana does not determine property division based on the fault of either party, unless such fault pertains to dissipation of marital assets.5
While Indiana statute provides that the “incurable insanity” of either party for at least two years is grounds for divorce, case law suggests that the insane party is not competent to file a petition for dissolution of marriage, and that if he or she is under a guardianship, the guardian also has no authority to do so. Such an allegation would also likely indicate the divorcing spouse would be liable to pay disability maintenance for the duration of the “incurable insanity”, which would likely be for the rest of that spouse’s life.
Your choice of grounds for divorce can have legal consequences about which you may not be aware, and therefore, you should consult an Indiana divorce attorney before filing a petition for dissolution of marriage. An experienced attorney can help you determine what ground will work to your advantage and is most appropriate in your situation. For instance, it is unlikely your attorney would cite “incurable insanity” as a basis for divorce because it would almost certainly result in life-time maintenance payments by the “sane” spouse. Thus, every step of a divorce must be carefully considered.
This blog was written by attorneys at Ciyou & Associates, P.C. We handle domestic cases throughout the state. It is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
- In Indiana, the “divorce” is the same as a “dissolution of marriage”.
- Abney v. Abney, 374 N.E.2d 264 (Ind.Ct.App.1978)
- Flora v. Flora, 337 N.E.2d 846 (Ind.Ct.App.1975).
- Indiana Code section 31-15-2-3
- Indiana Code section 31-15-7-5