“My spouse cheated on me. If I file for ‘fault divorce,’ am I likely to get more in terms of spousal support and property?”
Florida eliminated “fault” as grounds for a divorce long ago. Presently, all that is required to obtain a dissolution of marriage in Florida is one party to the marriage to reside in Florida for the six months immediately preceding the filing of the petition, and one party alleging that either the marriage is irretrievably broken or that one party is mentally incapacitated. Notwithstanding, the trial court under appropriate circumstances may consider “fault” when alimony and the division of marital assets and liabilities are issues in the case.
The Florida Alimony statute states, “The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” However, the case law interpreting the alimony statute makes it very clear that the primary criteria to be used by the trial court when considering a spouse’s request for alimony is the requesting spouse’s need for alimony and the other spouse’s ability to pay it. As such, despite the aforementioned statutory provision, trial courts generally will not consider evidence of adultery relevant in making an alimony award, unless the adultery caused a depletion of family resources or had some other financial effect detrimental to the innocent spouse.
Florida’s higher courts have similarly ruled that the trial court should apply a similar standard for considering adultery when determining how to divide the parties’ property (equitable distribution). Typically, marital misconduct, including adultery, cannot serve as a valid reason to award a greater share of the marital assets to the innocent spouse, unless the misconduct resulted in the dissipation of marital assets. Accordingly, as with alimony, adultery usually does not justify an unequal award of marital assets absent a financial effect to the marital estate resulting from the adultery. Most often, the financial effects on the marital estate arise where a spouse buys his or her paramour lavish gifts, or spends large sums of money for travel or other entertainment with his or her paramour. In such circumstances, the court will try to protect the innocent spouse from having to pay for the adulterous spouse’s improper use of the marital funds and will generally “reimburse” the innocent spouse from the wrongdoing spouse’s share of the marital estate.
In short, adultery alone will not normally be a persuasive factor in the trial court’s consideration of alimony or equitable distribution, unless it can be demonstrated that the adultery resulted in a financial detriment to the innocent spouse’s interest in the marital estate.
Alan Jay Braverman is a divorce lawyer who has been a member of the Florida Bar since 1973. He is Florida Board Certified in the area of Marital and Family Law.
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