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. 

When going through the divorce process, it is very important to know how marriage and property ownership work in Florida, so you fully understand who owns what.  This in turn is important because during a divorce, you and your spouse both have a right to a share of marital property, but not to non-marital property that belongs to the other spouse.  This is important whether you are just going into a marriage, negotiating a prenuptial or marital agreement, contemplating legal separation or divorcing. 

The information in this article pertains to Florida residents and likely to residents of separate property (i.e. not community property states) but you should always consult a qualified attorney in your own state.  Florida is a separate property – equitable distribution state.  You live in a separate property – equitable distribution state if you do NOT live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin.  In Alaska, spouses have the opportunity to execute a marital agreement, making specific assets community property.

If you divorce, the judge has discretion and can award marital property to whichever spouse he or she thinks should receive it.  Non-marital property stays with its owner, even in divorce.

Having an asset in one spouse’s name alone doesn’t make that asset separate property. The test used by the courts is whether ownership has arisen from the proceeds of the marriage.  Basically, if an asset was purchased during a marriage and paid for out of a spouse’s salary, it’s marital property.

In Florida, examples of marital property would be:

• A bank or investment account that you and your spouse deposit your pay checks into.

• A house you bought and made payments on during your marriage.

• A car you purchased during your marriage, no matter whose name the car is titled.

• Your retirement account funded during your marriage.

In Florida, examples of separate property would be:

• A bank account that you opened and contributed to before you were married; no contributions were made during your marriage using marital funds.

• An inheritance that you received either before or during your marriage that has always been kept separate from marital property and no funds of your own were contributed during marriage.

In Florida, examples of how separate property can become marital property, aka “comingling”:

• You take money out of that bank account you had before you were married and you jointly purchase a home with your spouse, who also contributes funds to purchase the home.

• You put your inheritance into a joint account with your spouse.

Where to Get Help Understanding Marriage and Property Ownership:  Who Owns What?

If you or a loved one is contemplating marriage and a prenuptial agreement or is going through a separation or divorce, or expect to go through a separation or divorce, consult with a qualified Florida divorce attorney. 

We focus our practice on divorce and family law and you can reach us at (813)-931-8111 or by email at rechel@tampabaylawyers.com. Our office is located in Tampa, Florida; your next step is to contact our office for a consultation.  We look forward to hearing from you.

You can also watch videos from Theodore Rechel in the video FAQ section.

As your Florida divorce attorney will likely tell you, in order to receive the financial distribution and support you deserve during divorce, all marital assets must be identified and valued.  Unfortunately, many spouses hide assets, when separating and divorcing.  They key to finding hidden assets during divorce is, first, to be able to identify what assets to look for; and, second, to know how to look for them.  We’ll show you how to do both here.  If you have additional questions or concerns, consult with a qualified Florida divorce attorney.

Look for These Assets if You’re Going through a Divorce

Your spouse may have hidden, disguised, or undervalued these assets.

• Cash or travelers’ checks kept in a home or office safe or safe deposit box
• Custodial account in name and social security number of a child
• Hidden retirement accounts
• Undisclosed frequent flyer miles
• Delayed work bonuses,  stock options, or raise
• Delayed closing of long-term business contract
• Unreported income (i.e. cash deals) and skimming cash from business
• Overpayment of taxes
• Absorption of tax refunds
• Unreported antiques and jewelry
• Unreported art (rugs, sculpture, pottery, paintings, photographs, etc.) housed at the office
• Collections (art, baseball cards, memorabilia, silver, etc.)
• Fake debt repayment to friend or family member
• Fake pay to friend, family member, or fake employee
• Lavish gifts to boyfriend or girlfriend (i.e. jewelry, gifts, rent, tuition, travel, art, car, etc.)
• “Bearer” municipal bonds or series EE savings bonds
• Time shares

How to Find These Assets if They’ve Been Hidden

• Collect as much financial information as you can before you separate.  Collect copies of old and current financial statements; tax returns; investment and bank account statements, including ATM withdrawal records; credit card statements; and pay stubs.  Look for payments to a financial adviser, accountant, or attorney, who may be helping your spouse hide assets.  Keep this information at a friend’s house or in a safe deposit box, until your meeting with your divorce attorney.

• Check your credit report for any unusual activity.

• Call your spouse’s human resource department and ask for a copy of all payroll records.

• Hire a qualified Florida divorce attorney as soon as possible; he or she will provide good advice and give you specific steps to follow to protect your best interests.

• Your attorney may suggest that you hire a forensic accountant who will analyze your spouse’s finances to find any hidden assets and financial inconsistencies.

• Your attorney may advise you to have your spouse’s boss questioned (i.e. deposition) during your divorce case.

Where to Get Help Finding Hidden Assets during Divorce

If you or a loved one is going through a separation or divorce, or expects to go through a separation or divorce, consult with a qualified Florida divorce attorney. 

We focus our practice on divorce and family law and you can reach us at (813)-931-8111 or by email at rechel@tampabaylawyers.com. Our office is located in Tampa, Florida; your next step is to contact our office for a consultation.  We look forward to hearing from you.

If you are getting divorced you are likely highly stressed and certainly concerned about your family’s finances and future.  We understand; you are not alone.  To help you to achieve some peace of mind and to sleep better at night, we are providing this article, Your Alimony Rights: The Florida Basics, for your review.  For specific legal advice about your individual situation, consult with a qualified Florida family law attorney.

Why Alimony is Granted

Florida law provides alimony (i.e. support payments) when necessary to keep one of the spouses from becoming impoverished after divorce.  Alimony is different from, but related to, property settlement (equitable distribution).

You and Your Spouse Can Determine Alimony Payments

You and your spouse have the opportunity to come to an agreement on alimony (and other related matters such as property settlement, child custody and visitation, and child support.)  If you are unwilling or unable to come to an agreement, the court will analyze the case; and, if the court deems appropriate, it will order alimony to be paid.

You and your spouse have more control over alimony if you come to an agreement on your own, through your family law attorneys, and without court determination.  However, because of the emotional intensity of the situation, this can be difficult; legal guidance is imperative to keep the peace and make sure each spouse is treated fairly.   

Forms of Alimony

Alimony may be monthly payments, a lump sum, or a combination of both.  Moreover, alimony can be ordered on a permanent basis.  Alternatively, alimony may be ordered as rehabilitative, meaning financial support is provided until a spouse can be retrained, educated, and/or find employment.  For shorter periods of time, a court may order “bridge the gap” alimony to help a needy spouse transition to post-divorce life.  It is possible for the court to require life insurance or bond to assure that alimony is paid in the event of death under certain circumstances.

Court Considerations

 When determining an appropriate alimony award, the court considers:

• The marital standard of living
• Length of the marriage
• Age and health of each spouse
• The education and work experience of each spouse as well as the time needed to obtain education and/or training to find appropriate employment
• Financial resources, assets, and income of each spouse
• Each spouse’s contribution to the marriage, including homemaking, raising children, working to support the other through education, and assistance in career building of the other spouse
• Although Florida divorces are considered “no fault”, Florida courts do consider adultery when determining alimony to the extent that an adulterous spouse has spent marital funds on the illicit relationship.

Tax Deductibility of Alimony

The tax deductibility of alimony should be considered when negotiating an agreement with your spouse.  Generally, the paying spouse deducts alimony from his or her income for tax purposes, and the receiving spouse must claim it as income.  The parties can agree to make alimony non-taxable and non-deductible.

Generally, the answer is a resounding “no”.  In a very small number of cases, one parent is awarded sole parental responsibility for the minor child, and hence can make all parenting decisions for the child without consulting or informing the other parent, and without the other parent’s consent.  In a small but growing number of cases, the parties have shared parental responsibility for the minor child, but one parent is granted ultimate decision making authority over one or all parenting issues.  In that situation, the parents must consult and inform each other about the pending decision, but if they cannot come to an agreement, then the party with ultimate authority makes the decision.  In the vast majority of cases, the parties have shared parental responsibility for the child, with no designation of ultimate responsibility.  In that situation, in order to change a child’s school, the parties must confer with each other, keep each other informed, and agree before a decision is made and acted on.  If the parents cannot agree, the party seeking to change  schools must file a motion with the court and seek court permission before enrolling the child in the new school.  Beware unilateral decisions made in violation of shared parental responsibility by changing schools and enrolling the child without the consent of the other party or court permission.  There can be heavy consequences.  A violating party can face contempt charges, attorney’s fees, civil fines, and the child may be disenrolled from the new school and placed back in the old school.  Better to do it right then risk those potential outcomes.

The judges in Hillsborough county keep a watchful eye on every case filed in the family law division.  Upon each case being filed, the clerk automatically sets a case management conference in front of the Judge approximately 90 days after the date of filing.  The court signs an order requiring the parties and attorneys to attend.  The order sets out steps the parties must complete by the conference date, including the exchange of financial affidavits and mandatory disclosure documents, filing of child support guidelines, and attendance and completion of a parenting course.  it is also better practice to have scheduled or completed a mediation by the time of the case management.  Attendance at the conference can be excused by court order.  At the conference, generally the parties will not testify, but the attorneys and court will discuss the progress of the case, and the Judge will either set another case management conference or a pertrial conference and trial.

Who Should File First in a Divorce?

This is another question I have been asked thousands of times.  Generally, it depends on the situation.  If you file first, you do by definition control the timing of the commencement of the action.  This can and should be part of your divorce planning strategy, but is not an overriding consideration. 

Florida is a no fault state.  Filing first does not make you look good or bad to the court, so no brownie points either way.

The filing of the petition establishes the date that the court will use to determine marital assets and liabilities, so if you win the lottery the day before the petition is filed, the winnings will be divided 50-50, but if you file and win the next day, the winning ticket will be non-marital in nature and will most likely not be split. (Although one can argue the dollar used to buy the ticket was marital so the ticket is marital as well– there are always arguments and counter arguments). 

The filing date also establishes the number of years of marriage for purposes of determining alimony.  For instance, if you file a day before your 17th wedding anniversary, under the new alimony statute, you may avoid (or be excluded from) paying (or receiving) any permanent alimony.  If you file on your 17th wedding anniversary or after, you may be facing (or be awarded) a lifetime of paying (or receiving) lifetime alimony.  So the payor spouse would want to file first, the payee spouse would want to hold off. Learn more about alimony.

The petitioner also presents his or her case first at trial, and has rebuttal time at the conclusion of the respondent’s case.  People naturally remember the first and last parts of a sequence of facts, and judges are no exception, so the petitioner has some advantage there.  Going first at trial may be a mixed blessing though, as going second allows the respondent to adjust his or her case on the fly. 

So the bottom line is that each case is different and the urban legend that you ALWAYS have to file first is not necessarily correct.

Florida has radically updated its child custody laws and in the process, has virtually deleted common terminology. Gone are the terms “custody” and “visitation”. Also gone are the terms “primary residential care” and “primary residence”. We now have “parenting plans” and “timesharing” written into the statutes to describe the outmoded ideas of custody and visitation. By necessity, the idea of “majority timesharing” has arisen.

I get this question all of the time,  in the context of a “custody” dispute. Usually, people are under the misperception that after age 12, a child can make the decision for himself or herself whether to live with mom or dad. This is incorrect.   Under Florida law, a child’s preference is a factor to be considered by the court in determining where a child will reside.   But it is not the sole factor, and can therefore be outweighed by consideration of the other statutory factors.  The correct answer to the question is that a child’s preference is more persuasive the older the child gets, but a child cannot “choose” where he or she lives until reaching age 18.