Adultery or marital misconduct may be the reason you want a divorce in Florida but it is not the reason the court will grant a divorce.Because Florida is a “no fault” divorce state you do not have to prove guilt or cause to get a divorce in Florida. The parties only have to agree that the marriage is “irretrievably broken” or cannot be saved. Who broke the marriage or is more at fault is not considered in granting the divorce. Playing the blame game is very common in a contested divorce and can cost both parties huge amounts of time, money and heartache. There are three areas where adultery may be considered in a divorce in Florida but think long and hard before going down this path. It can easily cost more money to prove adultery than you will receive from the court in property or monetary awards.
The three areas where adultery may be considered in a divorce in Florida are:
1. Child Custody
2. Division of Marital Property
3. Amount of Alimony Awarded
In child custody adultery may be one factor considered in deciding the “moral fitness” of a parent. In a divorce in Florida the courts consider all factors and decide what is best for the children involved. Do not think that adultery alone will deny the other parent custody or visitation with their children. The claim of a lack of moral fitness must include other factors such as abuse and/or neglect and the court will be looking at both parents regarding this matter. This usually evolves into a very ugly battle with claims from both sides regarding parenting and lifestyle. Every aspect of your lives including your private conduct may be put under a microscope and publicly aired in a courtroom.
Divorce in Florida uses the concept of equitable distribution in dividing marital property and debt. This means that the court will divide these items equally unless there are other factors to be considered. One reason for giving a spouse more of the assets is for excessive spending of marital money on a lover. As in cases of excessive spending on gambling, drugs and shopping the court may allow an unequal division of property. If your spouse has bought their lover a car, paid their rent, taken them on trips and/or purchased them expensive gifts you may have a claim to be compensated for this. You will need proof of both the affair and the spending and this will likely cost you a lot of money in legal fees and private investigators to prove your case.
The last legal question that may be raised in cases of marital misconduct in a divorce in Florida is the amount of alimony to be paid. It usually must be proven that the adultery has increased your needs for monetary support. This is a difficult concept in a no fault divorce state. Judges often have difficulty punishing a spouse for adultery when their attorney keeps reminding them that they are in court to get divorced not play the blame game. Also, If you can prove the adultery and prove that it increases your need for money it is not likely to be a huge factor in the amount of alimony awarded.
You may have noticed that I am not encouraging this battle over adultery. A discussion of proving adultery in court may be in order to further describe what you are getting into.
Adultery in a divorce in Florida must involve sexual intercourse and you must prove that the spouse has the tendency and opportunity for adultery. Kissing, hugging and other sexual conduct does not prove adultery but can be considered evidence of a tendency toward adultery. Opportunity for adultery is often proven through circumstantial evidence such as a husband/wife entering their lover’s apartment in the evening and not leaving again until the morning. If you can prove both tendency toward and opportunity for adultery you may have a good case but you will need a lot of evidence. This will probably involve hiring an expensive private investigator to document your spouses behavior, naming the lover and having a witness such as a neighbor or friend that will testify in court regarding the sexual conduct they have observed. All of these people will need to be interrogated before the trial by both lawyers adding to the expense.These tactics can be very unpleasant for everyone involved. The accused lover of your spouse may hire a lawyer and get involved in the case as well. You better be very sure that you are correct about the affair and not falsely accuse an innocent person.
The court is also going to want to know if you condoned the marital misconduct. If you were aware of your husband or wife’s affair and continued to live with and have sex with them the court may find that you have forgiven the spouse or condoned the act. If they begin the affair again and you move out or kick the adulterer out of your home you may have an adultery case again. You can see how these cases can be ugly public spectacles.
You may be very upset about your spouses sexual misconduct but try to set aside your emotions and move on with your life in a healthy manner. If you want revenge for their behavior you are not likely to get much satisfaction from the court system in a divorce in Florida. A public battle over private matters can be very expensive monetarily and emotionally with little potential benefit in most cases.
