The discovery that a spouse committed infidelity is shocking for most, and prompts many to immediately file for divorce. This type of betrayal goes to the heart of any relationship, and the wronged spouse may understandably assume that evidence of this misconduct will drastically impact the outcome of a divorce since the other party is clearly at fault for the demise of the relationship. However, Indiana is primarily a no-fault divorce state, with limited grounds to sue for fault-based divorce, and infidelity is not one of the grounds. This means that as long as one spouse claims the marriage is “irretrievably broken,” a court will grant the divorce regardless of why the marriage ended. For obvious reasons, infidelity is one the leading factors leading to divorce, and a recent study conducted at Florida State University examined predictors that a partner would engage in this behavior, such as visual engagement with and devaluation of potential partners. However, the existence of no-fault divorce does not automatically render everything related to infidelity irrelevant in divorce. A discussion of two areas that can be affected by unfaithfulness in divorce, if the circumstances are right, will follow below.

Division of Property: Waste

Absent a prenuptial agreement or extenuating circumstances, property in an Indiana divorce case is divided equally between the spouses. In fact, a 50/50 split is presumed to be fair, and evidence to the contrary must be presented to overcome this premise. Indiana law provides a list of factors that could tip the balance toward a different split, and the one most applicable to a claim of infidelity is the dissipation or waste of marital assets. If one spouse used marital funds to support an extra-marital relationship, and thereby reduced the amount of assets available for distribution, a court could use this fact to justify apportioning marital property in another manner. Other factors that courts consider when an equal division is challenged include:

• The contribution of each spouse to the acquisition of property;
• How much property was acquired before marriage or through an inheritance or gift (this type of property is typically considered separate, and not necessarily subject to division);
• The financial resources of each party at the time of the property settlement; and
• The earnings or earnings ability of each spouse related to the final division of property, i.e., would the person have enough for self-support with a 50/50 division in light of his/her earnings ability.

Child Custody

When assessing child custody matters, courts are mainly concerned with the best interests of the child. This standard essentially looks at whether either parent poses a risk to the child’s welfare, and if so, the extent to which parenting time and decision making should be limited. Infidelity is most likely to affect only the other spouse, in which case this issue has no impact on custody decisions. However, how and when a parent chooses to introduce a child to a new partner, and whether a significant other engages in dangerous activities, such as drug or alcohol abuse, or past incidents of child abuse, could provoke a judge to block a parent from exposing the child to this person. Overall, though, the law does not provide mechanisms for punishing a cheating spouse in divorce, but guilt could encourage him or her to be more amenable to requests for property, support, or parenting time. An experienced divorce attorney will know if the circumstances of infidelity are potentially relevant to the outcome.

Get Legal Advice

Many considerations go into a person’s decision to get divorced, and regardless of the circumstances that ended your marriage, you need sound advice from a divorce attorney on where to go next. Christopher L. Arrington, P.C. understand how difficult this process is, and uses creative strategies to obtain results that are best for everyone. Contact the Danville law firm to schedule an appointment.