Does Fault matter in a Florida divorce?

Many couples going through divorce find solace in playing the blame game—“I am getting a divorce because my spouse did this, that, and the other!” But just how far can that get you? In Florida, it probably won’t get you that far, and placing blame on your spouse, who is a party to your divorce proceeding, simply may not be relevant. That is because in cities like Boca Raton, Florida, and in the state of Florida in general, divorces are based on a “no fault” premise. The Florida legislature, like in many states through the country, has essentially made the “fault” inquiry during a divorce proceeding obsolete because it allows either party to seek divorce without a showing of cause. In Florida, the magic words to plead in your petition for divorce are that the marriage is “irretrievably broken.” Pleading “my husband cheated on me (adultery)” will likely get you nowhere!

That being said, conduct such as adultery, which may in fact “cause” one party to initiate a divorce, can impact other determinations raised during the divorce proceeding itself. Easily stated, fault may not be grounds for divorce in Florida, but it may be relevant to other determinations the court may be forced to make. Specifically, in Florida, one party’s adultery may have significant implications for divorces that include child custody battles, equitable division of marital assets, and distribution of alimony.

In child custody battles throughout Florida, before the court determines which parent should obtain custody of the child, the court must consider the “moral fitness” of a parent and what is in “the child’s best interests.” For this step, the court may consider both parent’s sexual conduct and whether the conduct had or is reasonably likely to have an adverse impact on the child. If adultery or marital misconduct is likely to have an negative effect on a child’s best interests, that court may take it into consideration when making its decision.

Please notice the limitations of this standard, however. While the court is allowed to consider a party’s adultery or marital misconduct, such conduct will not necessarily establish that a parent is unfit to obtain custody. While other factors may be considered, and the determination of custody is within the sole discretion of the court, the scales may tip against an adulterer if adultery has a negative effect on the child. But even if the court determines that a parent’s adultery has had an adverse effect on the child, other factors, such as, cruelty, neglect and parental unfitness exhibited by the other parent may be present to tip scales back in favor of award of custody to the adulterous parent.

As Florida’s case law makes emphatically clear, what is in “the child’s best interests” is an extremely fact-sensitive inquiry. If the court does decide to base its decision to award child custody to one parent and not the other due to a party’s marital misconduct or adultery, that finding must be thoroughly explained on the record. If you are going through a divorce due to your spouse’s marital misconduct, and you believe that it has negatively affected your child, remember, the best advice would be to consult you divorce lawyer to discuss how to properly obtain custody

Andrew M Smith

P.S. If you are currently going through a divorce, alimony battle, trying to determine custody for your children I can help you.  I specialize in Family Law, and have a proven track record of helping local South Florida Families resolve their legal issues.  You can reach me at 561-961-4665.

P.P.S.  Be on the look out for my next blog in a couple of days.

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