Effect of Adultery in a “No-Fault” Divorce State
Some people assume that because Florida is a “No-Fault” divorce state adultery is of no consequence to the outcome. Others assume that the “cheating” spouse is to blame for the break-up of the marriage and will consequently “get less” in a divorce settlement or court award. The answer is not as clear cut as one would think. Adultery is a thorny subject, which requires an understanding of several family law concepts to fully evaluate.
Yes, Florida is a “No-Fault” divorce state. If irreconcilable differences exist and the marriage is irretrievably broken, the courts will proceed to enter a Judgment dissolving the marriage. The Florida Courts will not decide which party is at fault in granting a divorce. Adultery is not a defense to stopping or dismissing a divorce action.
Florida is an equitable distribution state, which means that everything acquired by the parties during the marriage is considered part of the marital estate and subject to being divided by the courts as evenly as possible. However, if there is proof that one spouse spent martial funds on expensive gifts, lodging, trips, repeated dinners and entertainment on another partner, the court may take that into consideration to decide whether the actions of the cheating spouse has caused a dissipation of martial funds. If this type of dissipation can be proven it could have an impact on the division of assets. The merits of the financial toll on the marriage should be clearly evaluated prior to deciding whether to pursue these allegations. Keep in mind, first there must be proof; second, the amount of dissipation must outweigh the cost of litigating this issue in court.
Adultery is a factor considered by Florida Courts when awarding alimony. However, the fact that a spouse may have committed adultery will not, in and of itself, prevent the award of alimony if all of the other factors require alimony. Other factors are considered in awarding Alimony; such as, the length of the marriage, relative incomes of the parties, marital financial resources, earning capacity, standard of living, age and fitness of each spouse, education of each spouse are all relevant and considered by Florida Courts in awarding alimony. The court expects to hear testimony on each of these factors in deciding whether to award alimony. If the court finds one spouse to have a “need” for alimony and the other spouse to have “the ability to pay” it may entertain evidence of adultery to determine whether joint marital funds were spent on the affair to decide what type of financial impact it had on the marriage.
Unlike child support, there is no formula for alimony. To a large extent, the amount of alimony, and whether to award alimony at all, is completely within the judge’s discretion. The existence of adultery can certainly affect the amount of alimony, or possible prevent the award of alimony in a close case.
Adultery may also be presented to the court for determination of children’s issues such as Time-Sharing and Shared Parental Responsibility. Again, the court’s role is not to assess blame in a divorce; however, in regard to the children’s issues, the “best interest of the child” standard rules the day. The fact that a spouse has violated the marital trust resulting in the break-up of the marriage, will not automatically result in being viewed by the court as a “bad” parent. In fact, the court may weigh the testimony presented and find that the infidelity destroyed the marriage, and still find that the parent-child bond is strong and deserving of equal timesharing. Evidence regarding lack of parental involvement, moral fitness, endangerment and adultery must be presented to the court on time-sharing and custody issues. This could result in the cheating spouse receiving less parenting time than she or he might otherwise receive.
While Adultery could have some swaying influence over various aspects of divorce, it plays a significant role in the settlement process; especially in cases involving a potential award for Alimony. For more information on the effects of adultery in divorce please contact us and request an evaluation of your situation.