When an Extramarital Affair Can Play a Role in Your Florida Divorce Judgment

Lately, we’ve been hearing a lot about states decriminalizing the use of marijuana. There is, however, another decriminalization movement underway that you’ve likely heard less about. The State of Utah did it in 2019, and Virginia took action earlier this year. Bills are under consideration in Minnesota and New York. What is it that’s being decriminalized with such increased frequency lately? Adultery and/or fornication.

While lots of states are taking action, Florida isn’t one of them. Section 798.01 of the Florida Statutes makes “living in open adultery” a second-degree misdemeanor. It’s been on the books since the 19th Century, and the Legislature has not yet taken action to repeal it.

While you technically can face a fine of up to $500 and spend up to 60 days in jail for open adultery, there are only certain specific situations where an extramarital affair – whether yours or your spouse’s – will have an impact on what the judge decides in your divorce.

The judge generally cannot, for example, punish you for being a “bad” spouse by reducing the amount of alimony you receive (or increasing the alimony you must pay) because you strayed. The judge also cannot award an unequal distribution of marital assets in favor of your spouse based on your affair when there isn’t evidence indicating that an equal distribution is improper.

Financial cheating in addition to romantic cheating

There are, however, several circumstances where an extramarital affair can impact a divorce in Florida. One takes place when your spouse financed his/her affair in a particular way. If your spouse used marital assets (like joint savings, joint credit cards or a joint bank account) to buy the paramour pricey gifts or fancy vacations that the two of them shared, that could trigger an impact. If your spouse used marital funds to pay the rent on the pair’s extramarital “love nest” condo, that might also have a role.

When those kinds of things happen, you can go to court and, with evidence of the expenditures and their sources, argue successfully that your spouse has engaged in what the law calls “dissipation” or “waste” of marital assets. If the court finds that your spouse did waste or dissipate marital assets, that can lead to a better judgment for you, such as an equitable distribution that gives you more than 50% of the remaining marital assets or a smaller share of the marital debts.

Another circumstance where infidelity can play a role in divorce is marriages with certain types of prenuptial agreements. Parties to prenups, like most contracting parties, are generally free to customize their agreements as they wish. (This is called the “freedom to contract.”) Sometimes, that means including a penalty clause in a prenuptial agreement for a spouse who cheats.

For example, celebrity gossip websites were recently abuzz that Jennifer Lopez and Alex Rodriguez’s prenuptial agreement might dictate that the former baseball star would owe the actress a quarter billion dollars(!) if he strays during the marriage. Music superstar Justin Timberlake and his wife, actress Jessica Biel, have a prenup that says that Timberlake would owe Biel a half-million dollars if he has an affair. These clauses, if the spouse has sufficient proof of the alleged infidelity, will generally be enforced by the courts, including those in Florida.

Marriages and marital breakdowns are often complicated things and may come with complex details like extramarital affairs. Regardless of the emotional or moral impacts connected to such conduct, the law is very clear about the role that adulterous affairs should play (or not play) in a Florida divorce. Whether you strayed or your spouse strayed, it is important to make sure that the divorce judgment you get is a fair one. Rely on the experienced divorce attorneys at Sandy T. Fox, P.A., who have been helping Florida spouses for many years, to be the sort of effective and powerful advocate you need in your divorce case. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation today.

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