When you hear the term, “marital misconduct,” most people think of adultery and that adultery is a big issue to be considered in the divorce court.  However, in Florida, adultery is not the “smoking gun” issue that people think.  Unless the adultery results in the dissipation of martial assets, it is not particularly relevant.  Rather than determining which spouse was at fault in the failure of the marriage, the divorce court’s goal is to fairly wind down your joint financial life, and get you and your spouse started on new and separate financial lives.

Adultery is Largely Irrelevant to Your Divorce Rights

What does this mean, adultery is irrelevant to your divorce rights?  It means that in most cases, there is no need to hire a private investigator to follow your spouse and take pictures of illicit affairs.  The court just doesn’t care because Florida is a “no fault” divorce state.  You can get a divorce without proving adultery or any other misconduct on the part of your spouse.  We understand that this may be frustrating, because if your spouse commits adultery, it is, likely, one of the most painful experiences of your life.  

 “Financial Adultery” Does Matter

While the act of adultery itself has little or no bearing on your divorce case, “financial adultery” or dissipation of martial assets on the illicit affair does matter.

For example, you may be compensated if:

• Your spouse spent gobs of money on a “friend.”
• Your spouse knew he or she was going to file for divorce and hid money.
• Your spouse’s family or business partners helped him or her hide money.

What about the Statute?

• A statute is a written law, passed by the legislature, state or federal. 
• In Florida, Sections 61.075 and 61.08, Florida Statutes appear to contradict some of what we’ve said above; it specifically appears to contradict our comments on adultery not typically being considered by the court.
• The statutes indicate that adultery and other forms of marital misconduct matter in divorce settlement, meaning that the “injured” spouse should receive more assets than the “offending” spouse. 
• However, in practice, the courts have indicated that adultery or misconduct must be financial and intentional, either not condoned or known by the injured spouse, and resulted in dissipation of martial assets. 

Other Ways to Consider Adultery in Divorce.  

If parenting plans and timesharing are an issue in your case, the courts may admit evidence of adultery as it relates to the care of the minor child or children.  For instance, if the adulterous spouse leaves the child in the care of the other parent, and is not available to care for the child because of the affair, the courts will most likely hear and consider this evidence.  If the spouse conducts the affair in the presence of or to the knowledge of the child, this can also be considered as affecting the child’s mental well-being. 

Consult an Attorney

We recognize that marital misconduct laws and practice can be confusing.  Make sure that you get good legal advice about your individual situation. 

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