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  5. Does An “Affair” Matter in a Divorce Case?

Does An “Affair” Matter in a Divorce Case?

On Behalf of Dixon & Moseley, P.C. | Sep 11, 2018 | Divorce

No. Maybe. Even in today’s digital world, marital infidelity is difficult to define. Nevertheless, statistics show that “cheating” is one of the biggest factors in filing for divorce. Decades ago, the various states adopted the concept of no-fault divorce. This means if one party states the marriage is broken and wants a divorce, this is enough for the court to have jurisdiction over the matter. In the past, adultery or other wrongdoing was required; this is no longer the case.

There are now specific statutory reasons for a divorce under current Indiana law: irretrievable breakdown of the marriage; the conviction for a felony committed by a spouse during the marriage; impotence existing at the time of the marriage; or incurable insanity of either party for a period of at least two years.1 Practically, most all litigants cite to an irretrievable breakdown in the marriage when filing. However, while the “fault” from an affair is not jurisdictional, an affair may matter in court and have legal significance in a divorce case in one of three common ways addressed in this blog post.

Perhaps the most common way an affair plays out in a divorce is where the spouse who was “cheated on” is emotionally suffering from this revelation. Maybe the other spouse is even having a child with his or her paramour. In this case, although not necessarily legally significant in terms of custody or property division, this emotion may manifest itself in several significant ways and impact the divorce litigation; sometimes, for example, a spouse who is still reeling from the discovery of an affair may become rigid in legal objectives and make simple legal issues impossible to settle and cause them to be litigated. Thus, one spouse is really fighting an emotional battle (and healing from the hurt at the same time) while the other is fighting a legal battle to be divorced on the best terms, in the shortest time possible, and for the least cost to move on in life. This dynamic plays out practically in the case dragging on—sometimes for years—and having increased legal fees. To the extent this dynamic can be identified by you with counsel, there are ways to minimize its impact in the case. The Divorce Act has numerous tools to assist the attorneys and litigants through the court to move the divorce along the way to a final dissolution of the marriage, such as where a spouse is causing unnecessary delay and costs associated with learning about an affair.

As it relates to child custody and a court deciding the parents’ physical and legal custody and parenting time in the child’s best interests, issues relating to an affair sometimes creep in or significantly impact, the divorce proceedings. At perhaps the most basic level, a spouse’s introduction of a new significant other to the children of the marriage can ignite a firestorm and all sorts of claims and allegations sometimes occur that may or may not impact the custody decision the court has to make.

One such issue is where the spouse insists the children call his or her new partner “mommy” or “daddy”. If this is true, it is potentially significant. If it is not, but some statement of the children makes the other spouse believe that is the case and occurring, then emotional dynamics may drive custody objectives that may not have existed in the past. On a more substantial level, a new partner may (with the divorcing spouse) have other issues they interject into the marital divorce dynamic impacting custody, such as alleged drug use or high-risk behavior by the new partner. At a minimum, the addition of a new adult into the children’s lives creates layers of additional considerations for the divorce court to “wade through” in making custody decisions.

Sometimes, the situation changes custody decisions for the benefit or detriment of either parent. This is a complex legal situation that should be carefully navigated with counsel and may require the assistance of an expert, such as a custody evaluator, to assist the court and present the case in court—your case.

While an “affair” may seem far removed from the property division in any given divorce case, every seasoned divorce lawyer knows it comes front and center at times in the property division. For instance, a credit card statement may reveal a gift or trip by divorcing spouses for the benefit of the new boyfriend or girlfriend. Such information is commonly significant in one of two ways. First, the emotion it evokes may, again, entrench a spouse in a position where the cost of the trip or gift and recovery of this sum is more important than the rest of the case. Again, there are ways to mitigate this with counsel. Second, in some cases, the amount of marital money diverted from the marital estate to a new partner may be significant and constitute dissipation of marital assets. This means, if identified, your counsel may seek that to be accounted for in the division of assets to the spouse who “lost” this part of marital assets. These are but a couple of examples how an “affair”, while not necessary to form a legal basis to get divorced, may have a major-to-significant role in divorce proceedings. This is an important complex legal issue to identify and navigate with counsel for the best possible outcome relative to your legal objectives.

Dixon & Moseley, P.C. advocates handle divorce and paternity cases of all types throughout Indiana, including divorce cases where some type of marital infidelity is involved. In most cases, they are complex matters that change along the way. Identifying and managing these issues is the key to moving the divorce along to allow for a dissolution of marriage and to present your case as to what custody arrangement is in the children’s best interests, as well as how an affair may impact the property division. This blog was written by attorneys at Dixon & Moseley, P.C. It is for general educational purposes only and is not intended as legal advice, nor a solicitation for services. It is an advertisement.

  • Ind.Code 31-15-2-3.
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    On Behalf of Dixon & Moseley, P.C. | Aug 5, 2026 | Firm News

    An Indiana appellate lawyer's guide to determining whether a trial court order can be appealed and when appellate review may be available. Quick Answer: What Orders Can Be Appealed in Indiana? Not every unfavorable court ruling can be appealed immediately. In Indiana,...

    How Many Days Do You Have to Appeal in Indiana? (2026)

    On Behalf of Dixon & Moseley, P.C. | Jul 15, 2026 | Firm News

    An Indiana appellate lawyer’s guide to Notice of Appeal deadlines, Motions to Correct Error, interlocutory appeals, and common timing mistakes. Quick Answer: How Many Days Do You Have to Appeal a Case in Indiana? In most Indiana appeals from a final judgment, the...

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    On Behalf of Dixon & Moseley, P.C. | Jul 9, 2026 | Uncategorized

    A practical Indiana appellate lawyer’s guide to Notice of Appeal deadlines, appealable orders, the appellate record, briefing, oral argument, rehearing, and transfer to the Indiana Supreme Court. If you lost a civil case in Indiana, you may wonder whether the trial...

    Common Grounds for Appeal in Indiana Civil Cases (Complete Guide)

    On Behalf of Dixon & Moseley, P.C. | Jul 1, 2026 | Uncategorized

    When a civil case does not go your way in an Indiana trial court, an appeal may provide a path to reversal, but only if certain legal errors occurred. Indiana appellate courts do not retry cases or reweigh evidence. Instead, they review whether the trial court...

    When Is Parental Consent NOT Required for Adoption in Indiana? (2026 Guide)

    On Behalf of Dixon & Moseley, P.C. | Jun 25, 2026 | Uncategorized

    Adoption in Indiana typically requires the consent of a child’s biological parents. However, Indiana law provides several important exceptions where a court may allow an adoption to proceed without a parent’s consent. Understanding these exceptions is critical;...

    Failure to Object: When Is an Issue Waived?

    On Behalf of Dixon & Moseley, P.C. | Jun 9, 2026 | Uncategorized

    An Indiana Litigation Guide for Preserving Error on Appeal In Indiana litigation, one of the most common mistakes a trial lawyer can make is failing to object at the right time and in the right manner. The rule is simple but unforgiving: if you do not properly object, you may waive the issue for appeal. An objection must be timely…

    Waiver on Appeal: The #1 Reason Appeals Lose in Indiana

    On Behalf of Dixon & Moseley, P.C. | Jun 2, 2026 | Uncategorized

    In Indiana appellate practice, many appeals do not fail because the underlying issue lacked merit. They fail because the issue was waived. In plain terms, waiver means the appellate court will not decide an argument because it was not properly preserved in the trial court, properly supported on appeal, or properly presented under the Indiana Rules of Appellate Procedure. Common…

    How to Preserve Error for Appeal in Indiana

    On Behalf of Dixon & Moseley, P.C. | May 28, 2026 | Uncategorized

    Executive Summary There are several things that an attorney can do to ensure that an error is preserved for appeal. Making timely and specific objections and obtaining an explicit ruling from the judge on such objections can ensure that a matter is preserved. If evidence is excluded, the attorney should make offers of proof through questioning the witness outside of…

    Can a mother legally deny parenting time to an unmarried father?

    On Behalf of Dixon & Moseley, P.C. | May 10, 2026 | Uncategorized

    The answer depends on several important legal factors, including paternity, custody orders, and the best interests of the child. An unmarried mother has sole legal custody in Indiana unless a court orders otherwise. An unmarried father does not have enforceable rights until paternity is established by either signing a paternity affidavit or filing a paternity action in court. If paternity…

    What Happens to the House in an Indiana Divorce?

    On Behalf of Dixon & Moseley, P.C. | Apr 23, 2026 | Uncategorized

    Executive Summary A house is considered marital property if it is owned by one or both spouses, even if it was acquired before the marriage. Indiana law presumes that a 50/50 division of marital property is fair, but this presumption can be rebutted by a number of factors. As for the house specifically, the court may award the house to…

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    • What Orders Can Be Appealed in Indiana? A Guide to Final Judgments, Interlocutory Appeals, and Appellate Rights (2026)
    • How Many Days Do You Have to Appeal in Indiana? (2026)
    • How to Appeal a Case in Indiana: Step-by-Step Guide, Deadlines, Costs, and Common Mistakes (2026)
    • Common Grounds for Appeal in Indiana Civil Cases (Complete Guide)
    • When Is Parental Consent NOT Required for Adoption in Indiana? (2026 Guide)

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