If you have discovered that your spouse is cheating, you are likely to experience a wealth of emotions like anger, betrayal, sadness and fear. Adultery is one of the most common causes of divorce, but many spouses are appalled when they talk to a Florida divorce attorney about the relevance of infidelity to the issues in a divorce. Television dramas often depict spouses telling their marital partner, “I am going to take you to the cleaners for cheating.” These threats often occur following scenes where a spouse has discovered irrefutable proof of adultery. While a person dealing with the betrayal of a spouse has every reason to be upset, he or she often is dumbfounded to learn that marital infidelity usually plays almost no role in a marital dissolution.
Adultery in No Fault Divorce States
Despite the fact that cheating is referenced as a factor in more than six in ten marital dissolutions throughout the United States, Florida and most other states are “no fault” divorce states. In a no fault divorce, a party seeking divorce only needs to indicate that a marriage is irretrievably broken to have a divorce granted. This means that unless special circumstances apply, a cheating spouse does not suffer negative consequences in a divorce based on proof of infidelity.
However, there are some special situations where your spouse’s cheating might impact the issues in your divorce. If your spouse is misappropriating marital property or income, the judge may take such conduct into consideration when determining an equitable division of marital property. When a spouse provides substantial gifts to an adulterous partner, the betrayed spouse has a right to have this wasting or marital property considered as a factor in the equitable distribution of marital property.
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Diverting or Hiding Marital Assets or Income
In other situations, a cheating spouse and his or her paramour may actually be collaborating to hide income or divert marital assets. When a party to a divorce fails to disclose assets or attempts to defraud a spouse of an equitable share of marital assets, this constitutes a breach of the fiduciary duty that spouses owe to each other when engaged in a marital dissolution in Florida. The judge can legitimately consider this breach when fashioning an equitable distribution of marital assets and debts.
Another exception to the general rule that adultery is not relevant in a divorce involves alimony awards. Florida Stat. 61.08 expressly permits a Florida judge to consider the infidelity of either spouse when determining whether to grant alimony as well as the appropriate amount or alimony. However, the judge must first make a factual determination that one spouse has a financial need for alimony and that the other spouse has the ability to pay. The court many not consider infidelity unless these two factors are satisfied.
Impact of Prenuptial Agreements
If the parties have a prenuptial agreement that specifically addresses the issue of cheating by a spouse, then a spouse’s betrayal can have a substantial impact on the financial issues in a divorce. Florida law permits wide discretion to spouses to negotiate financial consequences of infidelity in a prenuptial agreement. In a divorce where, alimony is waived in the event of adultery, a spouse’s unfaithful conduct might become the key issues in the case.
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Infidelity & Child Custody in Florida
While infidelity can be relevant to child custody orders, this is fairly rare. Judges will not consider infidelity as evidence of “bad character” when determining custody. The court will only consider infidelity if it directly impacts the relationship between the cheating parent and minor children. For example, a spouse who carries on an affair openly in front of the children during the marriage might be determined to be engaging in conduct that is detrimental to his or her children. When a parent elects to forgo custodial time to spend time with a new paramour, a judge also may take this into account when crafting a parenting plan.
As experienced Florida divorce lawyers, we know that a partner betrayed by the marital infidelity of a spouse justifiably feels that a partner’s adultery should matter. If your spouse cheated on you, we will tenaciously represent your interests with empathy and compassion. We can analyze the facts of your case and advise you about how your spouse’s cheating might be relevant to the issues in your divorce.