It is common knowledge that addiction to illicit and prescription drugs is at “epidemic” proportions in the United States. Unfortunately, families are not immune from this problem and many divorces are tied to addiction (which may be tied to mental illness diagnoses as well). Many spouses simply do not know how addiction may play into divorce, so they wait or do not file at all until it is too late. This blog covers what you need to know about filing for divorce where addiction is at play.
The basis for the divorce. Indiana is a no-fault state so the fact that a spouse is drug-addicted makes no difference in the ability to obtain a divorce. If one spouse posits the marriage is “irretrievably broken”, that is sufficient for divorce. However, make no mistake, addiction may make a considerable difference in custody and property division. The key to making the most of this for the victim spouse is careful preparation of the case and development of evidence before trial.
Waiting too long. Time and again, divorce attorneys have observed victim parents stay in relationships driven by addiction because they feel like they need to do it for the kids. However, in most of these situations—especially ones where there is significant physical or emotional violence—the harm to the children is usually greater staying in the marriage than divorcing. Further, in many cases, the Department of Child Services becomes involved and instead of getting divorced and the non-addicted spouse obtaining custody, both parents are drawn into a long process where they could even lose their parental rights to their children—meaning they could be adopted by someone else. The conventional wisdom of attorneys is to divorce where addiction is wrecking the marriage, particularly where rehab has been refused or failed.
Child custody. Under the Indiana Divorce and Paternity Act, a parent who poses a significant risk of physical or mental harm to the children may have supervised visitation. This protects the children from a myriad of risks if the addicted parent gets parenting time, which ranges from being left unattended to being injured by being under the influence of the addicted parent who has a car accident. Thus, it is key in these cases to talk with your counsel about the evidence to establish addiction and what occurs when the other parent is under the influence. This may range from photos of drug use or buys to accident and police reports to medical records. This is the showing you must make in court to protect your children, and each piece of evidence has a specific foundation to be admitted in court. You have one first chance to make this showing, work with counsel to inform the court of the story and what is really going on.
Property division: Many addicted spouses have (in technical legal parlance) wasted martial assets to purchase alcohol or street drugs. Most skilled domestic attorneys have observed this run into the tens of thousands of dollars or even put spouses into bankruptcy. Thus, while the court is presumed to divide the assets equally if you can show marital waste, the court can deviate to make up for the wasted marital funds on alcohol or drugs. You may well need this money to move on in life with your children.
These are but a few of the complex legal considerations where addiction is at play in a marriage. A skilled divorce attorney will know how to take your story, obtain the evidence, and present your case in a way that makes your best custody case and position known and how to best advocate for an equitable property division. Addiction cases are hard and take a lot of work, but you can re-emerge in life and move on in a healthy way. This blog post was written by attorneys at Dixon & Moseley, P.C. who handle divorce cases with addiction of all types throughout the state. It is written for general educational purposes only and is not intended as legal advice or a solicitation of services. It is an advertisement.