How Does Adultery Affect My Naples, Florida Divorce?

Last updated on April 10, 2022
Adultery and Divorce in Collier County, Florida

Adultery and Divorce unfortunately often go together in a Florida divorce.

In the old days of Florida’s past, proof of adultery both allowed for a divorce and barred the adulterer from ever requesting alimony.  Presumably, the courts exercised broad discretion back then and punished adulterers by denying them marital assets and custody of their children (they just didn’t write it into the statute)

Today, Florida is a “no fault” state where the courts find no need to investigate who did what when (or with whom).

Adultery can still be a factor in a Florida, Divorce. Courts have declared that “In considering an alimony award, the trial court is authorized to consider any factor necessary to do justice between the parties, including adultery” Rosario v. Rosario, 945 So. 2d 629 (Fla. 2d DCA 1989)

While adultery can be considered in a divorce case between two married parties, adultery is no longer a tortious action in Florida between the aggrieved spouse and their spouse’s lover.

Other courts have held that they won’t even consider attempted murder by one spouse of the other spouse in awarding marital assets or alimony.  Mosbarger v. Mosbarger, 547 So. 2d 188(Fla. 2d DCA 1989)

There is only one aspect of a divorce where adultery has a formal impact on divorce in Florida: if it is accompanied by dissipation.

Dissipation of assets requires a contribution from the dissipator to the other party of half the dissipated assets.  Dissipation does not, however, affect future alimony payments.  Escudero v. Escudero, 739 So. 2d 688 (Fla. 5th DCA 1999).

Dissipation and adultery combined essentially prove the spending was not for a marital purpose because spending money on a paramour is definitely unrelated to the marriage and proof that the marriage is undergoing an irreconcilable breakdown.  “One spouse use[d] martial 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.” Romano v. Romano, 632 So. 2d 207, 210 (Fla. 4th DCA 1994)

Proving dissipation is often as easy as reviewing credit card statements.  If you didn’t go to that dinner or hotel with your spouse, someone else must have. Additionally, dissipation can sometimes be proven with subpoenaed text messages.

Practically speaking, in my experience, adultery has large effects on a divorce.  Essentially, one party has already experienced closure in the relationship (that’s why they’re already in another relationship) while the other party is still trying to make sense of things. This means one party is eager to finalize the divorce while the cheated-on spouse is roiling emotionally.

The further practical implication of adultery is that there is a massive deficit in trust after adultery.  The cheated-on spouse will want to engage in full discovery (exchange of financial documents) because there will be no confidence in the mere financial affidavit after the affair.  This will make the divorce process enormously more expensive.

Part of the discovery process may be subpoeanaing or even deposing the person the spouse had an affair with.  This is awkward and awful. Any lawyer who is willing to re-open old wounds this way needs to be sure the possible advantage in doing so is worthwhile.

Furthermore, discovery requests often can cause problems for the cheating spouse that impact the other spouse.  I have had several cases where a cheating spouse used a company credit card to entertain their paramour when they should have been entertaining clients (because if they used personal credit cards they’d have been caught by their spouse).  Subpoenas brought the divorce to the employers’ attention and the employers used that malfeasance as a reason to fire the spouse.  This sets off a chain of dominos where the cheating spouse could no longer pay alimony or child support as they looked for another job…while distracted by their divorce.

Relationships where the trust is completely broken often have to be resolved with an award of lump-sum alimony so the parties have nothing to do with each other in the future in any possible capacity.

If you’ve been accused of adultery or believe your spouse is an adulterer, you are clearly going through an emotional time in your life.  In such times, you cannot rely on your own judgment to steer you as you would normally.  Contact our Naples, Florida family law office to schedule an appointment and learn all of your options as the situation unfolds before you.

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