Many marriages end due to the adultery of one spouse (or both spouses). But does that adultery matter in the divorce? Legally speaking, probably not.
Florida is a “no-fault divorce” state, which means that any individual who is in a marriage can obtain a divorce either because the marriage is “irretrievably broken” or due to the mental incapacity of one of the spouses, so long as the spouse alleged to be incompetent has been adjudicated as such at least three years prior to the divorce. Section 61.052(1)(a)-(b), Florida Statutes (2023). You’ll notice that there is no mention of a finding of fault against either spouse in order to obtain a divorce in Florida.
Many decades ago, before Florida adopted the “no-fault divorce” statute, a spouse did have to prove entitlement to divorce, and one of the primary ways to meet that burden was to prove that the other spouse had committed adultery. Those days are long gone. However, there is one exception in which the adultery of one spouse can have an impact on a divorce: alimony.
The latest version of Florida alimony statute states, “The court may consider the adultery of either spouse and any resulting economic impact in determining the amount of alimony, if any, to be awarded.” Section 61.08(1)(a), Florida Statutes (2023). It is not simply the existence of an adulterous affair or adulterous conduct that matters, however. There is a long line of cases discussing what is called the dissipation of marital assets. Essentially, if adulterous conduct led a spouse to secretly waste marital assets on an adulterous relationship, that decrease in overall marital assets can be considered when determining the amount of alimony. Adulterous affairs can lead to all kinds of very expensive spending, such as on jewelry, vacations, paying for someone’s living situation, expensive meals, etc. An ongoing adulterous affair that goes on long enough can result in significant dissipation of marital assets.
Proving dissipation can be a difficult and costly endeavor, as you must do more than simply allege that your marital assets were reduced due to a spouse’s affair. Typically, one must go through years of bank statements and financial records to piece together which purchases were for the benefit of the marriage and which ones were for the benefit of the adulterous relationship. Thus, like much of the family law system, a cost-benefit analysis must be performed to determine how worthwhile this undertaking would be compared to how costly it would be. If financial experts are required, then the cost can really skyrocket.
We understand that divorce is an emotional process as well as a financial process, and often it can be difficult to see the cost-benefit analysis and make the right decision for yourself. This is why it is extremely important to speak to an attorney who will not simply agitate you and push you to go down this road, which will increase the number of hours they spend on your divorce significantly, and speak to someone who will provide you a level-headed analysis based on a multitude of factors (your family’s financial capabilities generally, your odds of success given the county you are in and the judge presiding over your divorce, how much more you are likely to receive if you are successful, and how much it will reasonably cost to investigate and pursue an alimony award based in part on suspected dissipation of marital assets). Please click here to schedule a consultation at your convenience and discuss your options with an attorney you can trust to help you make the right decisions for you and your family.