With infidelity being noted as the cause in up to 40% of divorces, it is common to question the effects these indiscretions may have on your divorce proceedings. Whether you or your spouse was involved in an extramarital affair it will be critical to discuss with your divorce attorney how these actions can hinder or aid your divorce proceedings.
Because Florida is a “no fault” state, meaning there need not be a legal reason behind your decision to divorce your spouse, there is a common belief that an affair will have no effect on a divorce proceeding. However, this idea is far from the truth. Infidelity may be taken into account when determining division of assets and liabilities, alimony, and child custody.
Under Florida Statute 61.08, the overarching standard in an alimony argument is the factual finding of a spouse’s need for such financial support and the respective ability to fulfill this need by the payor spouse. However, after this initial determination, the court is given broad discretion in the award amount. Statute provides a number of factors for the court to consider, however; the weight of each factor is dependent upon the judge. One of these explicit factors is adultery. As stated in 61.08, when awarding alimony “the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony…to be awarded.” However, historically the court will only take into account adultery of a spouse if this extramarital relationship resulted in a depletion of marital assets. This generally requires a showing that the spouse spent large amounts of money on gifts, vacations, or support for their paramour. The court will take these expenditures into consideration when determining the amount of support necessary for the other party.
Similarly, adultery may be accounted for during the equitable distribution process. In every divorce the marital property of the parties will be divided. Although many believe this is completed in a manner where each spouse is given an equal amount, this may not necessarily be the case. Once again, the court is given discretion to determine a fair division of property and is able to take into account a number of factors. One of these factors is marital misconduct, such as adultery. Just as in an alimony award decision, the dissipation of the marital estate by a spouse in order to expend these funds on their outside relationship, can affect the amount of assets or debts assigned to that spouse. For instance, if an unfaithful spouse used a joint credit card to financially support their paramour the entire credit card debt may be assigned to them without any impact on the other spouse. The court desires to obtain equity between the parties and if the relationship caused financial harm to a spouse the court will attempt to mend this harm through certain financial awards.
Finally, if you or your spouse has engaged in an extramarital affair and you have minor children, the court may consider these actions when determining custody. Although adultery is not an enumerated factor considered when determining the best interest of the child, the parent’s moral fitness is. With moral fitness being a fairly subjective term, the court may find that a parent’s infidelity to display negative character of a parent. However, in most cases, infidelity of a parent is only considered to be detrimental to the child when evidence can be presented as to the harmful effects it had on the child. For instance, if a parent expended funds on their partner and neglected their child’s needs, exposed the child to inappropriate behavior, or had the child around the paramour who has a significant criminal history, the court may implement certain safeguards to protect the child moving forward.
If your marriage was affected by infidelity, whether or not it was the cause of your divorce, there are many areas where these actions can be a factor in your divorce proceeding. Therefore, it is critical to discuss these unfortunate, and sometimes personal details, with your attorney to determine the manner in which infidelity may be a contributing factor to certain decisions in your divorce judgment.
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