At Ciyou & Dixon, P.C., we begin our representation of clients by educating them about the legal statutes, cases, and rules covering their case. With divorce, we often find there is a great deal of misunderstanding about the reason, or faults, of a spouse that may allow a divorce.
In the 1970s, there was a shift in national thinking about the propriety of divorce. Until that time, the religious principle of “till death do you part” carried sway. In the absence of fault by one spouse, such as adultery or extreme cruelty, divorce was not granted.
Somewhat tracking the Civil Rights Movement, choice and equality for all underpinned erosion of fault-based divorce. The Indiana Dissolution of Marriage Act which was adopted in 1971 expressly abolished the previously existing grounds for divorce which required a finding of fault on the part of one of the spouses.
Under present law, there are four legal reasons under which a trial court may grant a divorce:
- Irretrievable breakdown of the marriage.
- Conviction of either of the parties, subsequent to the marriage, of a felony.
- Impotence, existing at the time of the marriage.
- Incurable insanity of either party for a period of at least two years.
The first is almost exclusively the ground cited. As long as one spouse alleges and establishes in the evidence that there has been an “irretrievable breakdown of the marriage,” this is sufficient to allow for a divorce. This is sufficient even if the other spouse disagrees and does not want divorced.
Impotence, incurable insanity, and conviction of a felony existed as bases of divorce at times pre-dating the current no-fault divorce scheme.
Impotence appears to have not been used with much frequency at any time during the last 100 years to date. The reason this is a legal basis at all probably stems from religious overtones in that the basis for marriage is procreation.
Most likely, this is because science until recent times could not determine this with any certainty. At present, the time and expense of a medical expert to establish impotency would not be justified, given an “irretrievable breakdown” basis would suffice.
Incurable insanity, more precisely a unmanageable psychiatric condition of some type, has been and continues as a basis for divorce. However, in handling these cases, Ciyou & Dixon, P.C. attorneys find this raises two critical legal issues. The first is that an incompetent person must have a guardian to act in his or her stead in the proceedings. The second is the necessaries (in old cases) or maintenance the other spouse must pay to support the incapacitated spouse.
Although conviction of a felony remains a basis for divorce, it is unlikely to be cited because presumably this would cause the marriage to reach the level of “irretrievable breakdown.” This is only likely to be cited by a spouse who wants to have the court record clearly state as a public policy he or she is appalled at the other spouse’s behavior and is divorcing for this reason.
Ultimately, all of these legal basis are viable for a divorce. However, a torrid affair and public humiliation of the other spouse has no part in the current divorce scheme. The key issue where a criminal act or physical or mental disability exists is to protect the interests of the spouse through the process of a divorce.
Does the now ex-spouse of the convicted felon face lawsuits from the other’s criminal act? Is a physically or mentally disabled party receiving enough maintenance to meet his or her needs? On the other hand, is the payor paying too much support?
Ciyou & Dixon, P.C. Indianapolis divorce attorneys may guide you through a divorce from determining the legal basis to accounting for the financial implications a disability or criminal conviction may have. We practice throughout the State of Indiana.