On behalf of Ronald H. Kauffman, P.A. posted in Board Certified Lawyer on Wednesday, May 8, 2013.

Adultery can be the cause of a divorce, but can it impact the outcome? Since Florida became a no-fault state, the fact that, “he (or she) is sleeping with a co-worker” doesn’t hold much traction in court anymore. Anyone can file for divorce without proving any reason for it other than the marriage is “irretrievably broken.” Or is it? When is adultery relevant in divorce?

However, there is still a statutory basis for infidelity to be an issue in your divorce proceedings, but not in the way most people think. Here’s a quick review of when adultery can potentially creep into your divorce:

Parenting Plans/Custody

Chapter 61 discusses the “the moral fitness of the parents” as one of the factors the court considers in determining the best interests of a child. So, if one parent can prove that the other parent’s adultery had, or is reasonably likely to have, an adverse impact on the child, the judge can consider adultery in evaluating what’s in the best interest of the child.

Equitable Distribution

Adultery may impact the division of property. Florida is an equitable distribution state, and it is presumed that property should be evenly divided. This presumption may be overcome by proof that one spouse intentionally wasted marital assets. This waste is sometimes known as dissipation. Paying for expensive jewelry, foreign trips, rent, car payments, and dinners for girlfriends and boyfriends is considered wasting marital assets. The court has the power to reduce an adulterer’s equitable distribution to credit the marital estate for waste.

Alimony

Florida law specifically provides that a court may consider the adultery of either spouse in determining the amount of alimony, if any, to be awarded. However, courts have struggled to reconcile the “fault” of adultery with the concept of “no-fault” divorce. The result is a mix of opinions depending on the judges.

Sometimes, evidence of adultery comes into evidence. Sometimes, it doesn’t. A board-certified expert in marital and family law will be able to advise you whether adultery should be a factor in your divorce.

Remember there are two sides to every story. Even though you may not get to tell your side of the story, your spouse will be prohibited from sharing his or her condemnation of you too.