Impotence is a traditional ground for divorce and it remains on the books in many states that still allow fault as well as no-fault divorces. State law governs divorce, and the treatment of impotence as grounds for divorce varies widely. Some states require that a spouse be impotent at the time the couple married, while others allow a divorce if impotence occurred during the marriage. Some laws require that impotence be permanent to grant a divorce, a tough claim to prove in an era of medical advances in treatment for sexual dysfunction.
Generally, impotence is a physical or psychological condition that makes it impossible for a spouse to engage in sexual intercourse. Withholding sex from your spouse doesn't quality as impotence. Nor does the inability to produce a child, at least in most states. However, the wording of state statutes varies. For example, the Massachusetts definition states, "Impotence means the inability of one of the parties to perform sex." Mississippi law states that one party must be "naturally impotent and incapable of procreation." But in Illinois, the inability to have children is included in the definition of impotence.
Time and Duration
In Mississippi, one party must be impotent both at the time of the marriage and throughout the marriage. The condition must be permanent and incurable. Illinois has the same requirements. Some states allow a divorce only if the impotence of one partner is discovered after the couple marries, whereas other states allow a divorce if impotence occurs during the marriage.
If you sue your spouse for divorce on the grounds of impotence, you'll have to prove your case. For example, in Illinois you'll have to prove that your spouse was impotent at the time of the marriage and the condition is incurable. This might require you to ask the court to require your spouse to undergo a physical or psychological examination. Medical experts can be called to testify. If your spouse refuses to be examined, a court has the power to grant the divorce.
Why Allege Impotence?
Since a no-fault divorce is available in every state, it offers an easier path to divorce than alleging a fault ground such as impotence. However, a fault divorce has two potential advantages. Unlike a no-fault divorce, there is no separation period required, so a divorce might be obtained sooner. Also, a fault divorce offers the potential of a bigger settlement. In addition, impotence can be grounds for an annulment, which voids a marriage, treating it as if it never existed. However, fault-based divorces can be particularly nasty and expensive.