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Florida is a “no fault” divorce state. This means that either party may seek a divorce without a showing of cause. The spouse seeking a divorce simply needs to state that the marriage is “irretrievably broken.” Who broke it or played the greater role in breaking it is not relevant. The “irretrievably broken” standard relieves the court of the complicated duty of deciding who is at fault, and the parties to the marriage are spared a very contentious court battle.
Nevertheless, the adulterous conduct of one spouse can impact other important issues raised in a divorce. In child custody battles, for instance, a court considers the “moral fitness” of a parent seeking custody. This “moral fitness” question opens the door for an introduction of the parent’s adulterous behavior. According to the courts, the critical question is whether the adultery had or is reasonably likely to have an adverse impact on the child. Accordingly, adultery, while not in and of itself a bar to custody, requires an evaluation of the adulterer’s conduct and the surrounding circumstances to determine the impact on the child. The division of marital property and liabilities is another issue that may be impacted by adultery. Florida is an equitable distribution state so there is a presumption that the marital assets and liabilities should be evenly divided. This presumption of an even distribution may, however, be overcome by proof that one spouse has intentionally dissipated or wasted marital assets. Gifts, trips, apartment rent, car payments, and dinners for one’s “friend” are all a waste of marital assets. The court may reduce the adulterer’s share of martial assets to compensate a spouse for this waste of assets. Under Florida Statutes adultery is specifically listed as a factor to be considered in determining the amount of alimony awarded, but courts have struggled to reconcile the consideration of adultery with the “no fault” concept. The bottom line is that the amount of alimony awarded a spouse is only increased if the adulterous conduct increases the spouse’s monetary needs. But, remember judges are only human and evidence of adultery could conceivably color the judge’s view of the parties. -- Law Offices of M. Donald Reddish, PL |