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When another spouse has engaged in misconduct which damages the other spouse – perhaps through drug addiction, gambling, or cheating – this is often one of the primary reasons leading to the divorce. Furthermore, it’s not just the marriage itself that is hurt. Those types of behaviors can inflict enormous pain and financial stress on the other spouse. Which leads to the question of whether one spouse can use the other spouse’s marital misconduct against him/her in a Florida divorce.

No-Fault Does Not Mean Misconduct Will Not Be Considered

Like other states, Florida has adopted a “no fault” rule for divorce, which means that neither spouse is required to prove that the other spouse committed some kind of act which provides a legal grounds for the divorce. It used to be that many states would only grant a divorce if there was an issue such as adultery or abandonment, but Florida courts will grant divorces wherever one spouse desires to no longer be married to the other spouse. That said, while misconduct is not necessary to obtain a divorce, it can be considered in a variety of contexts within a divorce proceeding.

Marital Misconduct and Alimony

Florida state law indicates that, when one spouse is seeking alimony from the other spouse, the court may consider the first spouse’s adultery if that occurred. This does not mean that a spouse who commits adultery will not receive alimony but only that it is one of a number of issues that can be considered in determining alimony. Florida courts have gone to hold that, “a trial court may not consider a spouse’s adultery unless the adultery has caused the other spouse to have greater financial need or has depleted financial resources.”

Marital Misconduct and Custody

Custody arrangements in Florida are determined based on the “best interests” of the child, meaning the court will decide which custody arrangement would best serve the needs of the child. Courts consider a number of factors in this best interests analysis, including the ability and willingness of the parents to provide for the child and to encourage contact with the other parent. One spouse’s misconduct may be considered in this best interest analysis, but, again, it is one factor among many that will be considered.

Obviously, every situation is different and a court will look at the evidence presented in your individual case. For example, if one spouse has a debilitating, untreated drug addiction or gambling addiction, this could weigh heavily against custody in favor of that parent. On the other hand, an extramarital relationship may be considered unimportant in considering custody arrangements.

Marital Misconduct and Property Division

A court can also consider one spouse’s misconduct in dividing the couple’s marital property between one another, so long as the misconduct “has caused the dissipation of assets or has otherwise adversely affected the financial status of the other party.” Florida applies an “equitable distribution” approach to division of property, meaning the courts aim for an equal division of property but may deviate from that 50/50 goal when it would be fair in light of the circumstances to do so.

Again, the key is that the misconduct actually harmed the other party financially. For example, the courts have said that a child molestation against one spouse did not justify an unequal distribution because it did not directly affect the couple’s financial status. In another case, a court found that, where one spouse dutifully contributed to her 401(k) while the other spouse did not (resulting in spouse having $200k in a 401(k) and other having only $10k), this also did not justify disparate division of property. Instead, the courts will be looking for activity that more directly hurts the couple’s shared property, such as a gambling or drug addiction that significantly reduces the marital assets.

Talk to an experienced Florida family law attorney for guidance on whether marital misconduct might affect your divorce proceedings.

Legal Help in Your Florida Divorce Action

No matter where you are in the divorce process in Florida, from initial consideration to ongoing litigation, The Law Offices of Ira M. Marcus, P.A. in Miami can help. Contact our office today to set up a consultation with a trusted and caring family law attorney.

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