Whether adultery by either spouse impacts a divorce varies from state to state.  In some states the issue of adultery matters and is taken into account in determining certain divorce aspects like alimony.  In Indiana, divorces are considered “no fault.”  This means that Indiana courts do not consider the reasons for the dissolution of the marriage. Here, neither party needs to show that the other party did something wrong, such as committing adultery.  The only requirement in Indiana for divorce is a showing to the court that the marriage is “irretrievably broken.”  There are few specific instances where irretrievable breakdown is not necessary, such as a criminal conviction or insanity by one spouse.

So what happens when one spouse cheats?  Does the court not take this into consideration at all? Ultimately, it depends.  There are some instances in which adultery will play a factor.  For example, adultery will be considered in dissipation and division of property.

Property Division

In terms of the division of property, the presumption by Indiana courts is that marital assets and liabilities be divided 50/50.  Under state law, unless there exists a prenuptial agreement, all assets and debts are divided down the middle.  It is irrelevant if the property is titled in one spouse’s name or if that spouse was the cheating spouse.

To deviate from presumed equal division, dissipation is a factor considered by the court in its decision to divide marital property.  If either spouse can show that the other spouse used marital assets on another person during the marriage, that can be considered dissipation.  This would include money from a joint checking account spent on gifts for the other person, or money spent on travel on the individual with whom the spouse is cheating.

Child Custody

Extramarital affairs can also be a consideration for child custody.  Indiana courts may consider a parent’s judgment in introducing the children of a marriage to a boyfriend or girlfriend, looking at when and how this is done.  The court will also consider an exposure of the children to someone who abuses alcohol or drugs or has a history of child abuse.  All of this impacts the child custody portion of a divorce.

Whether or not the court in divorce proceedings considers adultery is dependent on the facts of each case.  Although there are limited circumstances in which the court considers adultery, practically speaking sometimes a cheating spouse is more willing to concede to things during divorce.  Due to feeling guilty for being unfaithful, a cheating spouse may want to make amends and this can be used as an advantage.

It is important to consult an attorney if you decide to proceed with a divorce after discovering your spouse has had an affair.  You want to speak to an attorney who understands your situation and who can advocate for your interests.  Attorney Christopher L. Arrington is committed to providing the highest quality of legal services to his clients.  If you are facing a divorce in Danville, Avon, Brownsburg, Plainfield and surrounding areas, please give our office a call today.