An irreconcilable differences divorce can only be granted when both you and your spouse agree to the divorce. By agreeing to an irreconcilable differences divorce, you are informing the Court that your marriage is irretrievably broken and that you wish to divorce and go your separate ways. You must wait at least sixty (60) days after filing your complaint for divorce for a divorce on the grounds of irreconcilable differences to be granted.
In an irreconcilable differences divorce, you can either (1) agree to the divorce itself and all other issues, including, but not limited to, child custody, child support, property division, debt division and alimony, or (2) agree to just the divorce on the grounds of irreconcilable differences and have the Court determine the remaining issues.
When you agree to all issues in the divorce, you and your spouse enter into a property settlement agreement which outlines your agreement regarding child custody, child support, property division, debt division, alimony and/or other issues. Once you have both signed the necessary documents, your attorney will obtain a date to present the divorce decree to the Judge for entry. Neither you nor your spouse are required to attend court on the date the Judge signs the divorce decree.
When you agree to the divorce on the grounds of irreconcilable differences but do not agree to all of the remaining issues, you and your spouse enter into a consent order which outlines to the Court what issues you and your spouse have agreed upon and what issues you and your spouse have not agreed upon. The issues that you and your spouse do not agree upon will be heard by the Judge who will then make a determination regarding those issues based upon the evidence presented to him at the hearing.
Fault Grounds for Divorce
If you and your spouse do not agree on an irreconcilable differences divorce, then in order for the Judge to grant you a divorce, you must prove that your spouse is guilty of one of the following fault grounds for divorce:
- Habitual Cruel and Inhuman Treatment,
- Habitual Drunkenness,
- Habitual Drug Addiction to narcotics or other drugs,
- Sentenced to the penitentiary,
- Desertion, for at least a one (1) year period,
- Incurable insanity,
- Insanity or idiocy at the time of the marriage, if you did not know of the condition at the time of marriage,
- Pregnancy of the wife by another man at the time of the marriage, if the husband was unaware of same at the time of the marriage,
- Natural impotency,
- Bigamy, and
- Marrying a person who is related to you when the degrees of kin between whom marriage is prohibited by law.
Engaging in sexual relations with someone other than your spouse during your marriage, even following separation, is adultery. Adultery may be proven by circumstantial evidence.
Habitual Cruel and Inhuman Treatment
Habitual cruel and inhuman treatment can be proven by showing repeated acts of physical or emotional abuse or by one extreme act of physical abuse. The actions rising to the level of habitual cruel and inhuman treatment are more than the typical fussing and fighting that couples go through.
In order to be granted a divorce on the ground of habitual drunkenness, you must show that your spouse abuses alcohol and that this abuse began after you were married.
Habitual Drug Addiction
In order to be granted a divorce on the ground of habitual drug addiction, you must show that your spouse has an addiction and that this drug abuse began after you were married.
Desertion can be proven by showing that your spouse has actually abandoned you and had no contact with you for over one (1) year. Desertion can also be proven by showing that your spouse has constructively abandoned you by banning you from the home or refusing or neglecting to provide for you. However, your spouse may defend the allegation of abandonment by showing that your conduct caused the alleged abandonment.
In order to be granted a divorce on the ground of natural impotency, you must show that your spouse was impotent at the time of your marriage and still is impotent and that the impotency is incurable.