Is Adultery a Factor in a Florida Divorce?

Adultery can certainly be a factor in a divorce.  However, adultery is only relevant for limited purposes.  Florida is sometimes referred to as a no-fault divorce state.  This only means that proving fault is not required to obtain a divorce.  There are only two reasons that are acceptable in Florida to obtain a divorce.  The most common reason is that the parties have irreconcilable differences.  The other is that a spouse is mentally incompetent.

A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony.  A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid.  F.S. 61.13(3)(f).

Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues.  The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination.  F.S. 61.13(3)(f).  If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children.  In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration.  Packard v. Packard, 697 So.2d 1292 (1st DCA 1997).  The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child.  Dinkel v. Dinkel, 322 So.2d (Fla. 1975).

When the court decides how to distribute marital assets, the court starts with the proposition that assets should be distributed equally.  This is true unless an unequal distribution can be justified.  The court may take all factors in consideration in deciding what is equitable.  For instance, if a spouse purchased a $6000 pair of earrings for his paramour during the marriage,  this would likely be looked upon as the intentional dissipation of marital assets, which could result in the unequal distribution of marital assets.

The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. So, if one party can prove that the other had spent funds on a paramour during the course of the marriage, those funds may form the basis for an unequal distribution of marital assets and/or liabilities.

It is common for a party to want to “payback” a spouse that has committed adultery.  However, one may reconsider the payback after realizing just how costly (emotionally and otherwise) it may be.  In the end, one should consider if the pain is worth the gain when it comes to perpetuating the details of adultery in court.  Especially where children are involved, bringing up a spouse’s adultery will likely forever alter whatever relationship remains with that spouse after the divorce which in itself can negatively impact a child of the marriage.  Maintaining a positive (or at least a civil) relationship with a former spouse will almost always be valuable where continuing contact with that spouse is necessary, such as where the two parties have minor children.  In short, adultery can be a major factor in some circumstances, but that is only true in a limited set of circumstances, and finding an experienced family law attorney to evaluate its significance is critical if adultery has occurred in your marriage.

This post was written by attorney Neil L. Weinreb who works for the Law Office of David M. Goldman, PLLS in Jacksonville, Florida.  Mr. Weinreb has been practicing family law in North Florida for 17 years and has taught family law as an adjunct professor.  Call today for a free initial consultation, (904) 685-1200.

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