So, imagine your spouse is a cheater and you would like to make them pay in divorce court by taking the house, the car and the kids.

Does Indiana law provide ways for a judge to make a cheating spouse pay any kind of infidelity penalty? Does it matter who was the better spouse or who was at fault for the breakup?

What are “fault” divorces?

There was a time when no-fault divorce was the latest new thing. Before they became widely available in America, the states made one of the two spouses give grounds that would justify the state permitting people to break the bonds of matrimony.

Spouses had to prove their accusations, a little as if they were trying their spouse for a crime, although they did not have to prove their accusation “beyond a reasonable doubt.”

Typical grounds included complaints such as the wife being pregnant at the wedding without the husband’s knowledge or involvement, “habitual drunkenness,” and committing “crimes against nature.”

Indiana’s fault divorces

Indiana has not done away with fault divorce entirely as have some other states, although it has whittled the available grounds down to just three:

  • A felony conviction after the marriage began.
  • Impotence at the time the marriage began.
  • Incurable insanity for least two years.

The state also still requires the spouse who is citing one of these three grounds to provide evidence to the judge in support of their claim.

Notice that infidelity is not a grounds for divorce in Indiana. As such it is not usually a consideration when the judge makes the final decision on who gets the assets (and who gets the debts).

Other options beyond fault divorces

Strictly speaking, there is a fourth grounds in addition to those listed above. The grounds of “irretrievable breakdown” of the marriage serves as the basis for the no-fault divorce laws of Indiana, although one spouse claiming these grounds is enough to do the trick.

There are a few other choices and decisions a couple can make if they can agree to part ways with a minimum of fussing and fighting. Naturally, the less acrimony a couple can bring to the breakup, the less total amount of money, not to mention time, the couple will need to spend to move on to the next phases of their lives apart.

Cases where the infidelity just might affect the settlement

Indiana is a community property state, meaning that the court generally splits assets (and debts) taken on during the marriage equally, 50/50, between the two spouses. But if one spouse spent a lot of money on their affair (jewelry, car, vacations, apartment, etc.), the court can essentially consider those expenses part of that spouse’s half, and it is too bad that they already spent it.

Also, if the “other” woman or man will be part of the lives of any children the divorcing had together, the judge may want to confirm that there are no serious and objective red flags about them. The judge may strongly consider it in the custody arrangement.