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How the Law Treats Infidelity in Divorce


Honesty and commitment are the cornerstones of any good relationship, and when adulterous behavior require these qualities be abandoned, divorce is usually quick to follow. Discovering a spouse has been unfaithful is devastating, and for many, the why will never be fully understood. This level of betrayal, and the direct cause of the breakdown of the marriage in most cases, can push the wronged spouse to focus on this issue in a divorce in hopes of extracting some type of punishment for the pain inflicted. A recent, and somewhat extreme, example of the looming presence of adultery in divorce occurred on a family court-based television show. During the show, the wife admitted to an affair with a member of her husband’s family, which was eventually revealed be a 15-year-old boy who may have fathered her child. Certainly, these circumstances are outside the norm, and if the husband wanted to highlight this fact during the divorce, people would be understandable. In fact, infidelity was traditionally grounds for a fault-based divorce, but the role it plays in current divorce litigation is significantly different. A discussion of how and when adultery plays a part in the outcome of a divorce will follow below.

Is Adultery Grounds for Divorce?

As noted above, adultery could serve as a basis for a divorce when fault was needed to obtain the dissolution of a marriage. Florida, and almost every other State, now follow a no-fault divorce model, meaning there is no need to prove the other spouse engaged in wrong behavior or other specific circumstance that made the marriage untenable. Instead, all that a spouse must now claim is that the marriage is irretrievably broken. Thus, while an unfaithful spouse may be extremely important to the demise of the marriage, courts do not generally give much attention to this issue, or want to hear about the details of an affair. However, while not relevant to establishing the need for divorce, adultery can influence the resolution of other matters in this process.

Where Does It Fit in a Divorce Case?

Depending upon the circumstances surrounding the affair, such acts can affect the outcome of child custody, property division, and alimony awards. Any behavior by a parent that reflects bad moral character is potentially a cause for concern when dividing parenting responsibilities. Adultery is not specifically cited as a problematic issue, whereas substance abuse and domestic violence are, but if the parent’s behavior related to the affair negatively impacts the child’s mental or emotional welfare, this could persuade a judge to give the other parent more parenting time, greater decision-making authority, or limit the unfaithful parent’s access to the child.

In the area of property division and alimony, if conducting the affair impacted the couple’s finances, particularly if assets were substantially depleted during the marriage, a court can use this as a factor when awarding property division and alimony. Specifically, if a spouse is found to have dissipated or wasted assets for non-marital purposes, the court can award a greater share of the couple’s assets to the innocent spouse. The same is true of alimony, if there is a need and the ability to pay. If financial harm was caused by spending on the affair, a court can use that information to determine if alimony is warranted, and the amount and duration of the support.

Talk to a Florida Divorce Attorney

Dealing with the betrayal of a spouse is painful, and divorce may be the best option to heal. If you are dealing with the fallout of an affair, and want to know how it may affect your divorce, talk to the attorneys at the office of Joyce A. Julian, P.A. today. We understand the strain this behavior puts on a couple’s emotions and finances, and will fight to get you the divorce settlement you deserve. Contact the Fort Lauderdale office for a free consultation.



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