These days, with the divorce rate continuously rising, there is a lot of misconception about the perceived correlation between an extramarital affair and divorce. However, in a no-fault state like Florida the type of impact an affair may have on your divorce settlement will vary with each case. However, adultery is completely irrelevant on your ability to get divorced in the first place. In Florida, as long as you meet the residency requirements, you may proceed with your divorce action.
Quite often the innocent spouse automatically assumes that adultery means that the adulterous spouse will somehow “pay” in a divorce proceeding or that the innocent spouse will gain a financial advantage by being awarded a greater portion of the marital assets. However, that is not the case.
Sometimes an affair may have no impact at all on your divorce settlement. In other cases, it may have an effect on spousal support (alimony), the parenting plan and time-sharing arrangement (child custody) and/or the equitable distribution of the marital assets and debts. There is just no “one fits all” answer on this subject.
In order for adultery to be relevant in your divorce case, the affair must be accomplished with the use of the marital funds. In other words, if the affair has been advanced with the marital funds, then there may in fact be some additional relief for the innocent spouse. However, at the same time, the innocent spouse must be ready to prove such dissipation of the marital funds. Without a paper trail, it would be an uphill battle to make the affair relevant in your divorce case.
However, should there be evidence of marital misconduct that results in dissipation of marital assets, then unequal distribution of marital assets and liabilities may be warranted.
For instance, section 61.075 of the Florida Statutes, when addressing the equitable distribution of the marital assets and debts does state that “[i]n a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court … in distributing the marital assets and liabilities between the parties … must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including: … the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition … and [a]ny other factors necessary to do equity and justice between the parties.” Section 61.075(1)(i)(j), Florida Statutes (emphasis added).
Furthermore, section 61.08 of the Florida Statutes permits a Florida court to consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. Section 61.08, Florida Statutes. However, even when adultery is at issue, alimony is not automatic. The party seeking spousal support (alimony) must still show the need and the other party’s ability to pay such spousal support (alimony).
When minor child(ren) are involved, adultery may affect the time-sharing and the parenting plan. In particular, if the adulterous spouse conducts the affair in the presence of the child(ren) or is not available for the child(ren) because of the affair, the Court may consider that evidence in curtailing the adulterous spouse’s contact with the child(ren).
Consequently, it is crucial to keep in mind that an affair itself is not relevant to a divorce action. An affair only matters when it impacts marital assets and has a detrimental effect on the child(ren) of the marriage.