Adultery is cited as a factor in approximately 65 percent of all divorces in the country. Although marital infidelity can be emotionally devastating, in a Florida divorce it relatively has very little, if any, significant impact than most spouses realize. Florida, like most states, maintains a “no-fault” policy when dealing with adultery. Florida’s “no fault” divorce policy removes adultery from the determination as to whether or not a divorce will be granted; adultery is also not a factor relevant to most of the financial issues involved in a divorce in Florida.
Some spouses automatically assume that marital infidelity falls directly within the purview of the provisions governing the division of marital assets and debts. See Fla. Stat. 61.075. Although it may be disheartening to some, it is most often the case that an adulterous spouse will not be punished in a divorce proceeding with respect to the division of marital property for engaging in an extramarital affair.
However, when a spouse’s infidelity is accompanied with financial misappropriation of marital assets and/or income, Florida law provides for an exception to its “no-fault” divorce policy. If a spouse is able to establish that substantial “gifts” were made by their spouse to the individual with whom that spouse was/is engaged with in an extramarital affair, the use of marital assets/income by the cheating spouse to further the extramarital affair may be taken into consideration for the purposes of arriving at an equitable distribution of marital property. See Beers v. Beers, 724 So.2d 109 (Fla. 5th DCA 1998) (citing Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990). Additionally, should the cheating spouse be collaborating with the individual with whom they are engaged with in an extramarital affair to hide marital assets, it would constitute a violation of that spouse’s fiduciary duty to protect and disclose marital assets, and thus would be relevant when the Court is making the determination to equitably distribute marital assets and debts. See Rabbath v. Farid, 4 So. 3d 778 (Fla. 1st DCA 2009).
With regards to alimony, Fla. Stat. 61.08 does permit a Florida divorce court to consider adultery of each spouse and the circumstances in the determining the amount of alimony, if any, is to be awarded. See Fla. Stat. 61.08; see also Enfinger v. Enfinger, 566 So. 2d 261 (Fla. 1st DCA 1990). Nonetheless, the court still is required to first make the specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. Fla. Stat. 61.08(2). Unless either party establishes a need for alimony, then adultery does not become an issue with respect to alimony.
Occasionally, adultery may become the central issue in a divorce under certain circumstances. For example, when the parties had previously waived any claims against the other for alimony in an antenuptial agreement “….unless the basis for the dissolution is adultery, physical abuse, mental or emotional abuse.” See Weymouth v. Weymouth, 87 So. 3d 30 (Fla. 4th DCA 2012).
With regard to children, if an extramarital affair is impacting the children of the marriage, adultery may be relevant when fashioning orders on child care and responsibility. For example, immediate and sudden exposure to a partner in a new dating relationship when a divorce is pending may not be regarded as being in the best interest of the kids. If a parent is unavailable to exercise custodial time with the children because of involvement with a romantic partner, this may also be an issue the court may consider when determining an appropriate parenting plan.
It is essential to keep in mind that the issue is not whether or not your spouse has been unfaithful, but how that infidelity can be shown to have impacted specific material issues in your Florida divorce. This is not always comforting to a spouse who feels that the infidelity of a marital partner destroyed the faithful partner’s marriage, but Florida Courts generally do not consider adultery as a relevant issue in a divorce case with the exception of certain limited circumstances.
If you are considering retaining an experienced West Palm Beach divorce law firm and have questions about how marital infidelity may be relevant or other questions about divorce in Florida, our office may be able to help. Please contact us at 561-429-3924 to schedule a consultation.