Impotence of either spouse is considered as one of the traditional fault grounds for divorce, and it remains a ground for fault-based divorce in some states. Some of those states allow grounds for annulment also to be grounds for fault-based divorce, and that includes impotence. In those states, the marriage is voidable if the afflicted spouse is found to have been impotent at the time of marriage and to have remained impotent up to the time the petition is filed. Generally, the petitioning spouse must prove that the impotent spouse is incapable of having sexual intercourse in order to get a divorce on this ground. Some of the states that retain impotence as a ground for divorce require that the impotence be permanent and incurable. In the case of the impotent husband, the advent of drugs to treat erectile dysfunction may affect that standard.
Medical Evidence and Impotence
A spouse’s inability to perform sexual intercourse with his/her spouse amounts to impotence. If a man is not able to copulate, he is considered impotent under the law. Impotence is different from infertility. Impotence is an inability to perform sex with the spouse, whereas infertility is the inability to produce a child. Medical evidence and testimonial evidence are admissible to prove impotence. For purposes of divorce, it is enough if the spouse is not able to indulge in sexual intercourse with his/her spouse, rather a general failure to perform sexually.
States that require impotence to be permanent and incurable in order to justify divorce generally require that the petitioner present evidence of permanence and incurability. The court may order a physical examination, and may grant divorce or annulment if the party refuses to comply with the order.
Some states consider and grant divorce if the respondent was impotent at the time of marriage and it was realized only after the marriage. Other states granting divorce because of impotence allow divorce if the impotence arose after marriage. The wide availability of no-fault divorce has diminished impotence as a divorce ground considerably.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.
As a Buffalo divorce lawyer for 28 years, I have devoted myself to solving the problems that affect families throughout the Buffalo metropolitan area and Western New York. As a family law attorney, I make it my goal to create a partnership of trust with my clients. People put their trust in me to handle cases that can potentially have a long-lasting impact on not only their lives, but the lives of their family as well.
Alexandra M. Rockwood is a Senior Associate Attorney with the Law Offices of Randy S. Margulis & Associates and has been with the firm since early 2020. She primarily practices in the areas of matrimonial and family law, including divorce, child custody, and child support. Alexandra is a practicing matrimonial and family law attorney as…