Adultery

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WHEN ONE SPOUSE has a relationship with another party outside the marriage during the course of a marriage, it can be an incredibly painful emotional experience for the other spouse, with significant consequences. In a divorce proceeding, it may be the natural inclination of the wounded party to want to use evidence of the affair in court.

However, as a matter of public policy, Florida limits the use of evidence of adultery during divorce proceedings. It has long been decided that parties may allege only one of two legal “grounds” for divorce in Florida, either that the marriage is irretrievably broken (the basis for the majority of divorces in Florida) or that a spouse is mentally incapacitated. The basic reasoning behind this policy is that divorce petitions become public records once filed. As such, they eventually may be accessed by any children of the parties; therefore, in the best interests of the children, ‘plain vanilla’ complaints, without salacious details, are preferable.

So does this mean the court is not permitted to hear any evidence of adultery? Not exactly. The court may consider evidence of adultery in the following circumstances:

·  Misappropriation of marital assets. If the spouse engaged in adultery misappropriated marital assets to purchase gifts for the person with whom he or she was engaged in the adulterous relationship, then this evidence could be presented to the court, and the other spouse may be entitled to recompense to arrive at equitable distribution of marital assets.

·  Conspiracy to hide marital assets. Likewise, if the spouse engaged in adultery conspired with the person with whom they are engaged in the adulterous relationship to hide marital assets from the spouse, the wronged spouse is entitled to present this evidence to the court in an attempt to achieve equitable distribution of marital assets.

·  Alimony. With regard to alimony, a party who desires alimony must first establish a need for alimony and the ability of the other party to pay. Once this threshold has been met, the court may consider evidence of adultery in establishing the amount of alimony to be awarded.

·  Time-sharing with children of the marriage. If the adulterous relationship is ongoing and there is evidence it is detrimentally impacting a parent’s relationship with children of the marriage, the court may consider this evidence in light of time-sharing and what is in the best interests of the children.

For more information on these and other issues which may arise during divorce, please contact Sandra K. Ambrose for a consultation. We welcome the opportunity to discuss your particular circumstances.

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