Can adultery affect divorce?
In Florida, the law does not recognize infidelity as grounds for divorce. Instead, Florida is considered a no-fault divorce state, which means that a spouse does not have to provide a specific reason for divorcing their partner. A judge will issue a divorce decree if the spouse who wishes to divorce states that the current marriage is irretrievably broken, meaning the relationship is so damaged that it cannot be restored.
But what happens if one spouse has an extramarital affair? Is infidelity ever considered as part of the divorce proceedings?
Yes…but only if there is a dissipation of assets.
Dissipation of Assets
Although marital assets are presumed to be equally divided, this is just a starting point in the search for equity in dividing assets acquired during a marriage.
Florida Statute § 61.075 provides the law relating to the division of marital assets and liabilities/debts. Part of the Statute allows the unequal distribution based on several factors, including “[t]he intentional dissipation, waste, depletion, or destruction of marital assets after . . . filing [for divorce] or within 2 years prior to the filing of [divorce]”.
An extramarital affair may lead to the dissipation of assets, provided that the cheating spouse is using marital funds to, for example, travel with a lover or provide a lover with lavish gifts. See, e.g., Rabbath v. Farid, 4 So. 3d 778 (Fla. 1st DCA 2009).
But just because a spouse is caught cheating does not guarantee an award of more assets to the non-cheating spouse.
For example, if an extramarital affair does not cause the waste or dissipation of marital assets, a court is less likely to consider the affair a reason to award an unequal distribution of the parties’ marital assets to the other spouse, on those grounds alone. Johnson v. Johnson, 847 So. 2d 1157 (Fla. 5th DCA 2003).
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