Whether it’s the stress of the divorce or a long-simmering issue, drugs and alcohol are frequent issues in Florida divorces.
Many other issues in divorce are black and white issues; he hit you or he didn’t, she made the money or she didn’t, his schedule allows for time with the kids or it does not. Drugs and alcohol, however, seem to be a big “gray area” in our society…and it’s getting grayer.
Almost everyone drinks. The divorce judge probably drinks. So how much alcohol is too much? And who even keeps track of that?
Though many states have decriminalized recreational marijuana, Florida has not. Fla. Stat. Ann. § 893.13. It is still a felony or misdemeanor (depending on the amount of marijuana) to possess, distribute, or cultivate marijuana for non-medical use within the state. However, proposed legislation in 2026 may change that.
So, does it matter if someone smokes marijuana or does drugs in the eyes of a Florida divorce judge? How do you even quantify the amount used?
Prescription drugs, including medical marijuana, should be okay, as long as they’re taken as prescribed. But even if they are, a prescription is a doctor’s official opinion that something is wrong. Can prescription drugs affect a Florida divorce?
The biggest issue is addiction. If drugs and alcohol weren’t addictive, people would stop using them for the sake of their marriage and their children. So, if you’re divorcing an alcoholic or divorcing a drug addict, you need to know what Florida divorce laws are available to protect you and your children. These same Florida divorce laws are very powerful, and if you’re accused of being an addict, you need to protect yourself appropriately. Working with an experienced Florida divorce lawyer early can also help you protect your rights and take the right legal steps from the outset.
How Drugs and Alcohol Do Not Affect a Florida Divorce
Drugs, alcohol and personality disorders go hand in hand with divorce. Neither the judge nor the legal system, will, in the end, label one party an “alcoholic” or a “drug addict” and make some final conclusion that one party was the “good person” and the other party was the “bad person.”
Any attempt at character assassination in a divorce court will usually be met with an eye roll from the judge. No description of binge drinking, bong smoking, or hard drugs will shock an experienced Florida divorce judge.
The question is “how do drugs and alcohol affect the issues in a divorce?”
In extreme cases of addiction, the issue of drugs and/or alcohol may hang over the entire case as you’ll see below.
Drugs and Alcohol in a Florida Divorce with No Children
When there aren’t any children in the marriage that’s being dissolved, drugs and alcohol only have one impact: dissipation of assets. Courts can consider the intentional dissipation, waste, depletion, or destruction of assets when dividing the marital estate. Fla. Stat. Ann. § 61.075 (1)(i).
Dissipation of assets occurs when “one spouse use[s] marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. Roth v. Roth, 973 So. 2d 580, 585 (Fla. Dist. Ct. App. 2008).
You need to have actual and specific evidence that shows their intention to use the money for themselves and the actual facts.
“[T]here must be evidence of the spending spouse’s intentional dissipation or destruction of the asset. Simple mismanagement or squandering of an asset in a manner of which the other spouse disapproves does not constitute dissipation.” Buoniconti v. Buoniconti, 36 So. 3d 154 (Fla. Dist. Ct. App. 2010).
Spending money on drugs and alcohol probably fits that definition exactly. Drugs and alcohol consumption is for the benefit of one spouse and is “unrelated to the marriage.” Contrast this to spending money on groceries, for example.
The issues is “how do you prove that the money was spent on drugs and alcohol?”
If you are accusing your spouse of squandering assets, you must prove that with specific evidence.
“The evidence must support…a specific finding that a party engaged in intentional misconduct that resulted in the dissipation of a marital asset…” Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008).
In Mattison v. Mattison, for example, the Former Wife didn’t make the specific argument that an asset should be dissipated due to misconduct, so the court didn’t include that in its equitable distribution of the marital assets. Mattison v. Mattison, 266 So. 3d 258, 262 (Fla. Dist. Ct. App. 2019).
The court decides whether there was misconduct by considering the evidence to see if the destruction or dissipation of the asset was intentional. To be intentional, the spending must not be due to some disease or circumstance beyond the spouse’s control. Tradler v. Tradler, 100 So. 3d 735 (Fla. Dist. Ct. App. 2012).
Because addiction is often considered a disease, it can be difficult to prove that a dissipation came from intentional misconduct. You have to actually show that your spouse spent money on drugs and alcohol. Vague claims that your spouse “wasted money” or “acted in a detrimental manner to the marital estate” will not be considered by the court.
“[T]he trial court is required to make particularized findings as to the husband’s ‘intentional misconduct.’” Welton v. Welton, 267 So. 3d 6, 9 (Fla. Dist. Ct. App. 2019).
In Rabbath v. Farid, the former wife accused the husband of dissipation of assets. She brought in a financial expert to verify specific transactions during a two-year period using documents from the husband’s financial records. She was awarded a higher percentage of the marital estate because the court found the husband had intentionally depleted assets. Rabbath v. Farid, 4 So. 3d 778 (Fla. Dist. Ct. App. 2009).
While you may not need to hire an expert, referencing specific transactions and having documentation to back that up will bolster your claim for dissipation.
Alcohol simply isn’t that expensive, so it rarely becomes a dissipation issue. If you’re running up credit card bills at a bar, that might be a different story.
But, if you’re buying a handle of vodka a week with your groceries, that’s going to be hard to differentiate from the groceries, let alone determine the total value.
Drugs are a different story. Drugs are expensive and you have to buy illegal drugs with cash. So, every withdrawal from an ATM can be a suspect for dissipation. If you are trying to accuse your spouse of misconduct, you have to try to track where that money goes.
The Florida statute puts a soft limit on how far back a dissipation claim can go in the list of relevant factors for a court to consider when awarding assets:
“[An] intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” Fla. Stat. Ann. § 61.075 (1)(i).
But, the last factor in the list, “any other factors necessary to do equity and justice between the parties,” allows courts to consider dissipation claims from well beyond the two-year limit when demanded by the parties’ circumstances. Fla. Stat. Ann. § 61.075 (j).
“[The statute] does not operate as a two-year statute of limitation, and the more remote dissipation is a factor which may be considered…” Beers v. Beers, 724 So. 2d 109, 114 (Fla. Dist. Ct. App. 1998).
In that case, the intentional dissipation amount was huge: over $300,000 in intentional depletion. On appeal, the court decided that creating a hard time limit would not offer adequate justice in cases where dissipation had occurred in large amounts over longer periods of time. This created the opportunity for dissipation claims to be considered even if they fell outside the time limit within the statute.
“It would in some cases be impossible for a trial court to ‘do equity and justice between the parties’ if it were unable to consider dissipation occurring more than two years before the filing of the petition for dissolution. [The] wrongdoing spouse who intentionally wastes marital assets during the course of the marriage would benefit from their misconduct.” Beers v. Beers, 724 So. 2d 109, 115 (Fla. Dist. Ct. App. 1998).
There is a defense to the dissipation claim based on drugs and alcohol, though. If both people were getting drunk or high together, the money expended on drugs or alcohol could be use of marital property for the sole benefit of BOTH spouses and thus be for a purpose RELATED to the marriage.
More practically, you can say “I always used drugs and/or alcohol and she knew what she was getting into. In fact, she often joined me.”
After all, who is just going to sit and watch their spouse get drunk or high for two years on end?
Drugs and Alcohol in a Florida Divorce With Children
All decisions about parental responsibility and parenting time are made based on the best interests of the child.
“The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child…” Fla. Stat. Ann. § 61.13 (2)(c).
It is very difficult to say that you can make decisions that are in the best interests of the child if you are often drunk or high.
It is very difficult to say that it is in the best interests of the child to spend time with you if you are drunk or high during your time with the child.
To put it simply, you cannot drink or do drugs while your children are in your care.
If you suspect and can prove that your child’s parent has been drinking or using drugs during parenting time, you can immediately motion to reduce that parent’s time with the child.
“For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interests of the child must be the primary consideration. A determination or parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial and material change in circumstances and a determination that the modification is in the best interests of the child.
Determination of the best interests of the child must be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation…
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect… If the court accepts evidence of prior of pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Fla. Stat. Ann. § 61.13 (3)(a-d, f-g, m, p-q, t).
There are several other factors the court may consider when modifying a parenting plan. Substance abuse in the home is one of many, but can be argued.
Courts can significantly, or even completely, limit a parent’s right to see their child if there is ongoing drinking.
“In the face of evidence that the former wife had endangered her children…in the recent past, the trial court ordered the former wife not to drink alcohol when her unsupervised visitation took place. The former wife is an admitted alcoholic, who by her own account is not doing much to try and control the problem. No reasonable person would subject these children to this risk, without more evidence of rehabilitation.” Allen v. Allen, 787 So. 2d 215, 217 (Fla. Dist. Ct. App. 2001).
While Florida divorce courts generally opt for supervised visitation when possible, they have upheld complete suspensions of visitation in extreme cases of substance abuse.
How do you prove that your child’s parent was drunk or high while exercising parenting time? Usually, there’s an incident where the police are involved and report that the person appeared drunk or high. If this incident was in a moving vehicle, the police will even record the parent’s drug alcohol level pursuant to a DUI charge.
In Virant v. Bunce, for example, the former husband argued that he should still be allowed some form of visitation with his children after the trial court suspended his visitations. On appeal, the court decided to uphold the order because the husband had received two DUI’s, one of which occurred while the child was in his care. Virant v. Bunce, 899 So. 2d 1157 (Fla. Dist. Ct. App. 2005).
Outside of a horrible incident where testing is mandated by law, it is going to be pretty difficult to prove that a parent was drunk or high.
Testimony from the other parent or family members is usually sufficient to establish dangerous drinking. That testimony should be corroborated by a Guardian Ad Litem.
For example, in Franklin & Criscuolo/Lienor v. Etter, a husband accused his wife of dangerous drinking, and his testimony was corroborated by the Guardian Ad Litem. The court took this testimony seriously, and did not award the wife custody. They instead allowed her an opportunity to participate in alcohol rehabilitation programs. Franklin & Criscuolo/Lienor v. Etter, 924 So. 2d 947, 948-949 (Fla. Dist. Ct. App. 2006).
If the drug and/or alcohol abuse was significant and ongoing, the parent may never get normal, unsupervised time back with their child.
“To merely come into court and say, ‘I don’t drink anymore,’ with a history of drinking, doesn’t really cut it, because most alcoholics will tell you the day after they had their last drink, they don’t drink anymore.” Allen v. Allen, 787 So. 2d 215, 217 (Fla. Dist. Ct. App. 2001).
In Creach v. Creach, the court didn’t even consider the husband’s claimed attempts at rehabilitation due to a lack of evidence. They ordered that only supervised visits would continue, and rejected his request for a return to normal, unsupervised time with his child. Creach v. Creach, 516 So. 2d 1060, 1061 (Fla. Dist. Ct. App. 1987).
Drug and Alcohol Testing In A Florida Divorce
The temptation of the parent accused of abusing drugs or alcohol will always be to submit to a court-ordered drug and/or alcohol testing regimen. NEVER DO THIS VOLUNTARILY!
Drug or alcohol testing means that you are under order to get tested at either regular fixed times or at sporadic random times to ensure your sobriety. This is a massive hassle and it paints you as the problem in the eyes of the court.
Even after you’ve tested negative repeatedly, the other party will never be satisfied that you are truly sober. You will need to get a second order to cease the drug and alcohol testing.
While marijuana and other drugs can stay in your hair for weeks, alcohol is out of your system within hours. That means alcohol testing is usually twice daily through technology like Soberlink.
Soberlink is a breathalyzer that reports results wirelessly and also takes a picture of the person blowing to ensure accuracy.
Soberlink has its merits, but Soberlink reports back “positive blows” if you use mouthwash or if yogurt further ferments in your stomach. Try to convince you ex that you weren’t drunk when a low-level, positive blow occurs. Even Florida divorce judges will be incredulous.
Florida courts occasionally use EtG testing, which can detect alcohol consumption up to five days after your last drink but produces a lot of false positives. That’s going to be pretty difficult to defend, even if the positive is false.
Who pays for all of this drug and alcohol testing? The courts have discretion to decide that, but often the cost is incorporated into child support obligations, which means it’s not paid solely by one parent.
“[T]he expenses of visitation are part of the parties’ childrearing expenses that must be addressed s part of the parties’ child support obligations.” Moore v. Yahr, 192 So. 3d 544, 545 (Fla. Dist. Ct. App. 2016).
In other cases, though, the cost can be solely borne by the accused. In Ryan v. Ryan, the former wife was required to pay the expenses of her alcohol and drug evaluation, SCRAM bracelet and monitoring, and the costs of in or out-patient treatment. If she lost the ability to pay or stopped treatment, she would have been violating the order necessary to visit her children. However, the court decided that she must bear the cost because she had violated previous orders and had shown no inability to pay. Ryan v. Ryan, 257 So. 3d 1168, 1170 (Fla. Dist. Ct. App. 2018).
Drug and alcohol testing is expensive, invasive, and only bad things can come from drug and alcohol testing in a Florida divorce case. Make the opposing counsel put on their case and prove that drug and alcohol testing is necessary. Do not volunteer for drug and alcohol testing.
While I am against drug and alcohol testing for my clients, I am a big fan of writing in a mutual policy of “no drinking” in the divorce decree. Then, if someone is drinking when children are present, it’s not a question of if it was too much alcohol or if the children were in danger…the only question is “did they violate the order?” This is simpler and more practical for everyone.
If Someone Has a Drug or Alcohol Problem, What Kind of Treatment Will They Need in a Florida Divorce?
If there are no children from the marriage, the courts will not care if the person remains a drug addict or alcoholic. Assets and debts will be divided, maintenance may be ordered, and that’s it. Have a nice life.
If the marriage has children and one parent has a shown addiction issue, then the court may appoint an “evaluator” to figure out what the level of addition is and how it should be treated. This evaluator is almost always a psychiatrist or psychologist.
“The court may require the person who has custody or who is requesting custody of the child to submit to a mental health or substance abuse disorder assessment or evaluation. The order may be made only upon good cause shown… The mental health assessment or evaluation must be administered by a qualified professional…and the substance abuse assessment or evaluation must be administered by a qualified professional. The court may also require such person to participate in and comply with treatment and services identified as necessary, including, when appropriate and available, participation in and compliance with a mental health court program or a treatment-based drug court program under chapter 394.” Fla. Stat. Ann. § 39.521 (1)(c)(1).
Any party may also request an examination under Rule 8.250 – “Examinations, Evaluation, and Treatment.”
Rule 8.250 (b) provides that “if the mental or physical condition, including the blood group, of a parent, legal custodian, or other person who has custody or is requesting custody of a child is in controversy, any party may request the court to order the person to submit to a physical or mental examination by a qualified professional on a showing of good cause.” FL ST JUV P Rule 8.250 (b).
This evaluator will usually be working hand-in-hand with a Guardian Ad Litem to determine the level of the parent’s addiction and what relationship is appropriate for the parent to have with the children in light of that addiction. Those recommendations are almost always adopted by the judge who approves the final allocation of parenting responsibilities and parenting time.
A treatment plan can also be proposed so that a new parenting schedule can be changed upon finalization of treatment. Usually, treatment is recommended and the can have another proceeding to determine whether a significant change of circumstances has occurred that would justify modifying the parenting plan. Harrell v. Friend, 388 So. 3d 1086 (Fla. Dist. Ct. App. 2024), reh’g denied (July 3, 2024).
Unfortunately, simply completing a treatment plan is not automatically a substantial change in circumstances. Completion must be coupled with other improvements, like improved relationships with the child or parenting skills.
“[E]ven if the fact that a party has overcome a prior substance abuse or mental health problem is insufficient, alone, to constitute a substantial and material change, it may well be sufficient when considered along other related changes in circumstances, such as an improved ability to parent, improved parental relationship with the child, and decreased risk of harm to the child’s physical and mental well-being and development.” Harrell v. Friend, 388 So. 3d 1086, 1091 (Fla. Dist. Ct. App. 2024), reh’g denied (July 3, 2024).
Addiction and Divorce in Florida
If a person’s addiction and other abnormal behaviors are so extreme that they threaten to bleed into all aspects of the divorce, not just parenting time and parenting responsibilities, a lawyer can ask for an examination under Rule 1.360 – “Examination of Persons.”
Rule 1.360 of the Florida Rules of Civil Procedure provides that: “A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy…[the order for examination] shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” Fla. R. Civ. P. 1.360 (a)(1).
The professional is almost always a psychologist or psychiatrist. The professional will then issue a report of their findings.
“[T]he party requesting the examination to be made shall deliver to the other party a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition.” Fla. R. Civ. P. 1.360 (b)(1).
The examiner is then usually required to be sworn in as a witness in order to submit this report to the judge. Fla. R. Civ. P. 1.360 (c).
The report will detail the party’s addiction, drug and alcohol issues (or lack thereof), and this will clearly color the entire case. A Rule 1.360 examination is extremely expensive, but an official report saying that a spouse is an addict is devastating in a Florida divorce trial.
If your spouse is addicted to drugs and/or alcohol and you’d like to know how this will impact your Florida divorce, please give us a call. We can discuss if we want to open this Pandora’s box and, if we do, how to best use it to your advantage.
If you are being accused of having a drug or alcohol issue by your spouse in your pending or current Florida divorce or parentage case, please contact an experienced Florida divorce lawyer. These accusations spin way out of control and then can affect your life in ways you can’t even imagine.
Russell Knight has been a licensed Florida family law attorney for over 8 years and has practiced law since 2006. He has guided many couples through the complex process of divorcing when drug or alcohol issues are involved. His depth of experience and commitment to protecting clients’ best interests are essential to navigating this sensitive area of family law.
Cases and Statutes Referenced in the Drugs, Alcohol, and Divorce in Florida Article
Fla. Stat. § 39.521 – Disposition hearings; powers of disposition
Fla. Stat. § 61.075 – Equitable distribution of marital assets and liabilities
Fla. Stat. § 61.13 – Support of children; parenting and time-sharing; powers of the court
Fla. Stat. § 893.13 – Prohibited acts; penalties
Fla. R. Civ. P. 1.360 – Examination of Persons
Roth v. Roth, 973 So. 2d (Fla. Dist. Ct. App. 2008)
Buoniconti v. Buoniconti, 36 So. 3d (Fla. Dist. Ct. App. 2010)
Mattison v. Mattison, 266 So. 3d (Fla. Dist. Ct. App. 2019)
Tradler v. Tradler, 100 So. 3d (Fla. Dist. Ct. App. 2012)
Welton v. Welton, 267 So. 3d (Fla. Dist. Ct. App. 2019)
Rabbath v. Farid, 4 So. 3d (Fla. Dist. Ct. App. 2009)
Beers v. Beers, 724 So. 2d (Fla. Dist. Ct. App. 1998)
Allen v. Allen, 787 So. 2d (Fla. Dist. Ct. App. 2001)
Virant v. Bunce, 899 So. 2d (Fla. Dist. Ct. App. 2005)
Franklin & Criscuolo/Lienor v. Etter, 924 So. 2d (Fla. Dist. Ct. App. 2006)
Creach v. Creach, 516 So. 2d (Fla. Dist. Ct. App. 1987)
Moore v. Yahr, 192 So. 3d (Fla. Dist. Ct. App. 2016)
Ryan v. Ryan, 257 So. 3d (Fla. Dist. Ct. App. 2018)
Harrell v. Friend, 388 So. 3d (Fla. Dist. Ct. App. 2024)
Frequently Asked Questions About Drugs, Alcohol, and Divorce in Florida
If there are no children in my marriage, does my spouse’s drug or alcohol use affect our divorce? Yes, it can affect the equitable distribution of assets. If you can use specific evidence to show that your spouse dissipated marital assets by spending large amounts of money on drugs and alcohol, you may receive a larger portion of the marital assets.
How far back can I go to prove my spouse dissipated marital assets on drugs or alcohol? Generally, you can go back 2 years to show dissipation. However, if there was significant or long-term dissipation happening, the court may allow you to look back farther than that in order to do justice to both parties.
What if my spouse and I both used drugs or alcohol together? Can I still claim dissipation? It would be pretty difficult to claim in that instance. Your spouse will likely argue that the funds were used for the benefit of both spouses, rather than just one. Dissipation occurs when assets are used solely for the benefit of one spouse.
Can medical marijuana use affect my parenting time? Probably not, as long as the drug is prescribed and being taken according to doctor’s orders.
Can my spouse’s drug or alcohol use affect their time with our children? Yes. Decisions about parenting, time-sharing, and visitation are all based on the best interests of the child. If the child is being endangered or subject to live in a home with substance abuse, the parent’s time can be restricted to protect the child.
What is the best way to prove that my spouse was drunk or high during their parenting time? Usually, the strongest evidence will come from a police interaction, likely a DUI. Testimony in court is also strong, but should be corroborated by a Guardian Ad Litem.
Who pays for drug and alcohol testing in a Florida divorce? It depends on your situation. Many courts will factor the cost into the custody calculation, so that both parties will pay a portion. In other cases, especially where the accused has violated previous court orders, the accused party will bear the full cost.
If my spouse completes a drug or alcohol treatment program, will their parenting time automatically be restored? No. While completing a treatment program is a great step toward recovery, the court needs to see that other areas have improved as well. Your spouse should try to show changes like an improved relationship with the child or improved parenting behaviors to restore time with the child.
