Despite Florida following No-Fault divorce policy, infidelity might not go unnoticed by the courts.
Since 1971, Florida has used a no-fault system to govern divorce proceedings. Prior to 1971, various marital misdeeds (“faults”) were used to justify obtaining a divorce from a Florida family law court. Previously, adultery had been used as one of those faults.
By and large, Florida courts no longer care about adultery as a general rule. However, there are exceptions to this rule, as the recent case of Lostaglio v. Lostaglio indicates.
Why Adultery Still Matters in Florida Divorce
In modern Florida law, there are only two grounds for divorce:
1. The marriage has broken down irretrievably
2. A spouse has been declared mentally incompetent for at least three years
Even so, a Florida court may look at a spouse’s infidelity to alter its decisions on how alimony and marital property is equitably distributed. Such was the case in Lostaglio v. Lostaglio.
The couple in this case were divorcing after 11 years of marriage, and the husband offered strong evidence of the wife’s infidelity and adultery. The trial court took this evidence into account before ordering an unequal distribution and awarded the wife durational alimony over a 10-year period. Both spouses appealed this ruling, albeit for different reasons. Regardless, both found the court’s application of the adultery evidence to be incorrect. The husband, specifically, argued that alimony should have been denied based on the proof of his wife’s marital infidelity. As a result, the appeal was heard by Florida’s 5th District Court of Appeal.
The appellate court found that the trial court did indeed have the discretion to look at a spouse’s infidelity when making an alimony determination. Referencing Section 61.08(1) of the Florida Statutes, the appellate court found that trial courts act within their judicial discretion when using evidence of infidelity to make an alimony determination. Even so, the court’s primary consideration should be a spouse’s financial need as well as the other spouse’s ability to pay. As a general rule, this holds regardless of whether a spouse was faithful.
An exception to this rule, however, occurs if a spouse depletes marital assets in pursuit of an affair or cheating. The wife in this case did no such thing, based on the record. Since the husband did not have proof that the wife depleted marital assets in the pursuit of her affair, adultery alone was not enough to deny alimony.
And, while adultery can also be used in child custody cases to determine parental fitness, the Lostaglios did not have children. As a result, adultery’s impact on custody did not play a role in this case, but it could have if the couple had children.
If you have questions regarding your divorce, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected]