Effect of Adultery on Divorce Cases in Florida


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While it can be devastating to discover that your spouse has been unfaithful and broken his or her vows, laws are increasingly finding such information irrelevant. Most heartbalm statutes have been eliminated across the country, limiting the rights of the aggrieved spouse to seek compensation from the adultery partner.

Likewise, intentional infliction of emotional distress against the cheating partner are resulting in fewer and fewer verdicts in favor of the aggrieved spouse as adultery is continuing to become a somewhat norm and not considered “outrageous” conduct in many arenas. Most partners even file for divorce on no-fault grounds even if the other spouse provided grounds through adultery because no-fault divorce tends to be faster and cleaner. Most states also specify that adultery is not to be considered in divorce actions.

However, Florida’s laws regarding adultery and divorce do allow some weight to be given in consideration of financial matters for the aggrieved spouse if adultery was committed.

Alimony

Florida’s family statute 61.08 specifically states that courts can consider adultery and the circumstances surrounding adultery in determining the amount of alimony to award. However, before this circumstance is taken into consideration, the court must make findings of fact related to a number of other factors that determine whether alimony should be awarded.

The factors enumerated under the Florida statute include:

• How long the marriage lasted
• The standard of living the couple enjoyed during the marriage
• The age, physical health and emotional health of each spouse
• The skills, educational levels, employability and earning capacities of each spouse
• The contributions that each spouse made to the marriage, including child care services, career building of the other party, homemaking and education
• The financial and physical responsibilities that each spouse will have toward their minor children after the divorce
• The separate property, marital property and financial resources of each spouse
• Each and every source of income of each party
• The tax consequences of alimony on both parties
• Any other relevant factor

Distribution of Assets

Florida uses the equitable distribution system to divide assets between the parties. The statute regarding the distribution of assets is Florida Family Law Statute 61.075. This statute states that the division of assets between the spouses begins as “equal.” However, it goes on to state that if the court can deviate from an equal distribution if there is a justification for this based on all relevant factors, including:

• The contribution of each spouse to the marriage, including contributions to child care or contributions of one spouse to the career or advancement of the other spouse
• The length of the marriage
• The spouses’ economic circumstances
• Whether either spouse’s career was interrupted
• The interest of retaining an asset without interference by the other spouse
• The contribution of each spouse to marital property and separate property
• Any interest in retaining the marital residence as the home for any dependent children

Additional Factors in Considering Property Division

In addition to these factors, the court can consider whether one spouse intentionally dissipated, wasted, depleted or destroyed marital assets after filing the divorce petition or within two years of the filing date. The court can also consider “any other factors necessary to do equity and justice between the parties.”

These two provisions in the family law statute provide support for the injured spouse receiving a greater proportion of the assets than the offending spouse, especially in cases in which the affair affected the spouse’s economic circumstances. For example, if one spouse was paying for an apartment, vacations or other luxuries for an affair partner, the court may try to compensate the injured party by providing him or her with a greater amount of assets to make up for those assets that were wasted without his or her knowledge.

Custody Decisions

The courts can consider adultery in child custody cases only in circumstances in which the affair affects the wellbeing of the child or as evidence that awarding the adulterous partner with custody would not be in the best interest of the child.

Proving Adultery

In order for the injured spouse to have any consideration under these statutes, he or she must prove adultery. Adultery may be proven by circumstantial evidence, such as when the adulterous spouse had the ability to cheat and was in the same location as the affair partner. Financial adultery can sometimes be proven by showing credit card statements and bank statements that show purchases and reservations made with the affair partner.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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