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  • Writer's pictureJarbath Peña Law Group PA

What Role Does Cheating Play in Divorce?

All too often, marriage ends in divorce. While the number of divorces may be declining, divorce remains a common end to a significant number of marriages. And while there are many factors that lead to divorce, infidelity remains one of the top reasons cited. Even if there were other underlying issues—such as financial stress or constant disagreements—an affair is often the “final straw” that causes the betrayed spouse to file for divorce. So while cheating has the effect of causing many couples to divorce, what role does cheating play in the divorce process itself? Well, the short answer to that question is that cheating typically does not play a large role in the divorce process. But there are exceptions. So today, we'll look at the state of the law and how some of those exceptions might apply to you.

No-Fault and Fault-Based Divorce

As recent as 50 years ago, most states required a legitimate reason for a couple to seek divorce. However, in the 1970s, states began adopting a “no-fault” divorce stance. This means that merely asserting that there are irreconcilable differences between the couple creates legally sufficient grounds for divorce. The courts altered their stance on this issue in response to the fact that fault-based divorce resulted in spouses using the courts to battle out who was and wasn’t at fault. As you can imagine, this finger-pointing consumed a great deal of time, money, and energy—and ultimately clogged up the court system. Because of its efficiency and ease, all states now recognize no-fault divorce.

It’s interesting to note, however, that some states allow both at-fault and no-fault divorces. In other words, such states allow the divorcing couple to choose if they want to take the fault route or the no-fault route to splitting up. However, Florida is not one of those states. We only recognize no-fault divorce—but that doesn’t mean that one spouse’s bad behavior will necessarily have zero effect on the outcome of the dissolution.

Adultery’s Effect on Divorce

It may be hard for the offended spouse to understand, but the fact that your husband or wife cheated on you may have little to do with how assets are distributed or how child support and custody are determined in your no-fault divorce. We understand your desire to somehow make your cheating spouse pay for cheating on you. You have been deeply hurt and betrayed and feel that someone should have to pay the price for inflicting such pain.

But perhaps it will help to understand that Florida has pretty straightforward rules for everything from splitting up your assets to awarding child support. For instance, Florida follows the rules for equitable distribution when splitting up assets between spouses. Typically, this means that the judge looks at all the couple’s assets and debts and splits them up in a fair and “equitable” manner between the parties. Please note that this does not necessarily mean that assets are split 50-50—but they are distributed fairly after the judge considers the couple’s entire financial picture.

Also, child custody is determined by what is in the best interest of the children, and child support is based on a state-provided mathematical formula. Cheating or bad behavior typically has little bearing on these considerations.

Possible Exceptions

While infidelity may not play a direct role in most divorces, there are a couple of exceptions where a spouse’s wandering ways may have an impact.

Extravagant Gifts

In most cases, the costs your cheating spouse incurred while wooing the object of their infidelity are not terribly high and aren’t worth calculating. Technically speaking, dinners, hotel rooms, and other expenses that were purchased through shared marital assets can be recouped in a divorce. But the time and expense needed to calculate those items are usually not worth the effort. The exception would be if the offended spouse could prove that the cheating spouse spent large sums of money on things like exotic vacations or extravagant gifts such as cars or expensive jewelry. In this type of scenario, these purchases can be counted against the cheating spouse when dividing assets. Usually the courts will not look beyond 2 years prior to the filing of divorce and the aggrieved spouse would typically get credit for half of the funds wasted.

Child Endangerment

Another way that cheating may affect a divorce outcome is when the affair endangered the couple’s children. Courts do not take it lightly when a cheating spouse harms their children by exposing them to an affair. Therefore, a judge could find that something like introducing the children to the cheating spouse's partner before the marriage ended caused the children undue pain or harm. This is not very common, as mere exposure to the affair is not enough. There must be a finding of actual harm to the children, which is very difficult to prove. A more serious example would be if the cheating spouse allowed an abusive or drug-addicted partner access to the children. If the betrayed spouse can prove that the affair continues to endanger the children, this fact can weigh heavily into the judge’s decision on who the children should live and spend time with.

Judge’s Temperament

We’d like to believe that a judge’s personal opinions and values do not play a part in divorce proceedings. However, judges are human beings with a good bit of discretion in divorce proceedings. So if one spouse’s actions were particularly egregious or abusive, many judges are inclined to be more lenient to that spouse in their rulings. This could potentially affect the distribution of assets, child custody, and child support determinations.

We Are Here to Listen and Help

Whether infidelity or any other bad behavior is a factor in your divorce, we are here to listen and help. The experienced and knowledgeable family law attorneys at The Jarbath Peña Law Group understand the hurdles you face as you go through this difficult time in your life. Our compassionate lawyers are committed to serving the people of Coral Gables and the surrounding Miami area throughout all stages of divorce and beyond. Even though we live in a no-fault divorce state: every divorce is unique. We understand that you may have circumstances such as an unfaithful spouse where the affair may be relevant to certain aspects of your divorce.

If you are unsure of your rights or have questions, we have the answers for you! Call today, and we will help you navigate your divorce. You can reach us at 305-615-1005 or through our online contact form. We look forward to serving you!

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