If a divorce ends because of infidelity, the spouse who was cheated on often feels they should receive special consideration in the divorce. Because Florida is a no-fault divorce state, you don't have to prove your spouse was cheating to file for divorce. It pays to remember that the court's responsibility in a divorce case is practical and legal, not emotional. The court works to determine a fair division of assets and debts and establish or approve custody arrangements for shared children. For the most part, the adultery isn't relevant to the terms of the divorce unless the affair has a material impact on marital assets, marital debts or the children. Also, if your spouse has an affair, wants a divorce and seeks alimony, the adultery can have a significant impact upon his or her alimony claim. There are certain additional circumstances in which adultery is very relevant.
Prenuptial agreements may contain an adultery clause which increases the award to the spouse who was cheated on or limits the total amount of recoverable marital assets if a spouse cheats. In order to be enforceable, the prenuptial agreement must adhere to the requirements under Florida state laws and if so, the court is likely to follow the terms of the agreement. Actual proof of infidelity, which has been legally obtained, almost certainly will be required by the Court.
A spouse who is a victim of adultery does not automatically qualify for alimony. Even so, if the adulterer wasted marital assets on the affair or gave lavish gifts to his or her paramour which had a significant enough impact (as determined by the court) on the other spouse's financial status, the court could award alimony or increase the amount of alimony to be awarded, based upon that fact.
While adultery in and of itself probably won't affect the amount you may be awarded in alimony and won't automatically qualify you for alimony, if during the course of cheating, a spouse spends marital funds in such a way as to negatively impact the other spouse’s overall financial situation, the other spouse may qualify for alimony.
Division of Assets and Debts
Similar to an alimony claim, the spouse who is a victim of adultery does not automatically qualify for a larger portion of the marital assets or smaller portion of the marital debts. Overall, the court will still divide the marital property in an equitable way (which doesn't necessarily mean "in half," as what is considered to be fair and equitable is based on a number of factors). At the same time, if a spouse who has cheated diminishes the marital assets as a result of that affair, the court may award the other spouse a larger portion of remaining marital assets than normally would be awarded, in order to make up for the cheating spouse's negative impact. Additionally, if the cheating spouse ran up debts related to the affair, the court may elect to make that spouse solely responsible for those debts.
In general, an affair shouldn't affect child custody. Child custody is all about what's in the best interest of the child. But there are extreme cases in which child custody may be affected if the parent's affair negatively impacted the child or may do so in the future. The court may not consider adultery directly, but the court does consider the moral fitness of each parent when determining what's in the best interests of the minor child. This is true especially if the adulterous parent neglected his or her familial duties or in any way negatively impacted the welfare of the child.
In rare circumstances, the court may limit – or even eliminate – the amount of time an adulterous parent is awarded with a minor child. Significant evidence of harm to the child would have to be proven in Court. Nevertheless, a denial or limitation of time-sharing with a child does not remove a parent’s obligation to financially support the child.
While Florida does not require claims or proof adultery in order to get a divorce, such proof is likely to be required before the Court will allow those claims to influence any of the above-mentioned aspects of the divorce. Adultery is not a criminal matter and, as such, the burden of proof required is much different and far lower than that necessary in a criminal case. Those who suspect a spouse is cheating, prior to divorce, may gather evidence such as photographs or videos obtained by a private investigator, friend or acquaintance who spotted the adulterous spouse around town.
But the court may also accept circumstantial evidence which, on its own, leads to the reasonable conclusion that the spouse was in an adulterous relationship; for example, based upon the spouse’s location in certain places with the paramour. In addition, financial records may be used to prove adultery through showing bank and credit card records for purchases and reservations made with a third party who is suspected of having a relationship with the spouse. Of course, witness testimony regarding an affair also may be considered by the Court.
Always remember that any evidence gathered to be used or presented in Court must be legally obtained. This can be more difficult than it seems. If you suspect cheating, you should contact a Kissimmee lawyer before attempting to collect evidence or confronting your spouse.
Determining Whether Cheating Affects Your Divorce Settlement
It is important to remember that the act of cheating itself is not an issue for the Court during a divorce hearing, as the Court will not punish a spouse based solely on infidelity. If you believe your spouse is cheating, the best way to determine if you may benefit financially in your divorce or whether the information will affect your child custody case is to contact an experienced Florida divorce attorney like the family law attorneys at Draper Law Offices. If you're getting a divorce in the Kissimmee, Florida, area and your spouse has cheated on you, call 866.767.4711 for a free, no-obligation consultation.
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