What No-Fault Divorce really means and doesn’t mean in Florida
If Florida is a no-fault divorce state, then it doesn’t matter if he is having an affair?
No-fault divorce is the most misunderstood concept in Florida divorce law. In this article, we will explain what a no-fault divorce means and how it shifts the focus of the divorce away from the “bad behavior” of a spouse and towards objective financial measures and child custody problems.
However, there are times and places where bad behavior of a spouse, like adultery and blowing through money or marital property, can make a difference in the case. We will touch on those as well.
In the old days, you needed specific rounds for a traditional divorce that were based on being wronged by the other spouse. That means you had to prove “fault” in order to get out of your marriage.
So in the old days, the mere fact that you didn’t agree with your spouse, or didn’t want to continue to be together, was not enough to get you divorced. Your spouse had to be cruel to you, didn’t provide child support, have lied to you about who he was, or committed adultery.
If you think about it, that means that in every divorce process in the old days, there would necessarily be finger pointing, accusations of dirty behavior, and fighting or domestic violence.
And with children, parental responsibility, spousal, and people’s retirement assets on the line, the focus on the traditional fault was in the wrong place.
In the 1960s, California led the way by introducing the concept of the no-fault divorce. The concept is simple: a party doesn’t have to prove that they were wronged by the other party in order to get a divorce.
Either can file a petition for dissolution of marriage or receive a divorce because they are incompatible and just don’t want to keep being married.
In other words, in a true no-fault state, the fault of the parties is irrelevant to whether or not the parties file for a dissolution of marriage.
This was a groundbreaking idea, and soon all 50 states adopted at least some portions of the no-fault divorce concept into their statutes.
Florida No-Fault Divorce
Florida, however, went “all in” and adopted a complete no-fault divorce statute.
That means in a Florida no-fault divorce at least, you can’t plead the fault of another party as a reason for divorce even if you want to.
And to take it a step further, Florida and other peer no-fault states wanted to make sure that the parties didn’t make the case about fault in other ways besides just why they wanted a divorce. So Florida changed the divorce law when it comes to dividing assets and debts (parentheses distribution), alimony, and attorney fee, so that the fault of a party is very limited in influencing how the judge makes a decision.
So for example, consider the case where the husband is the breadwinner and the wife is the homemaker. They have three children together. The wife is raising the children or at least doing the vast majority of the work, so the husband can go out into the workforce and make a good living. The husband has accumulated a good nest egg in the form of IRA’s, 401(k)s, etc. They are all in his name.
Unfortunately, the parties have grown apart and had a turbulent marriage. During the course of the marriage, the wife has an affair.
The husband finds out, and wants to send her divorce papers as soon as possible. The husband is devastated. And the thought of paying spousal support or dividing some of the retirement accounts with the woman that cheated on him is something he just can’t stand. His thought is that she should get nothing as a consequence of her actions.
Unfortunately for the husband, the wife’s cheating on him is a secondary issue and one that, at least in front of the judge, will not be one that will lead to a substantial change in alimony or in the assets that the wife receives.
That’s because the judge will not care about the cheating when it comes to granting a dissolution when the divorce proceedings come to an end. The judge won’t even listen to that when it comes to granting a dissolution. All the judge wants to know is that there are irreconcilable differences that have caused the parties to resort to legal separation.
When the husband asks the judge to order no alimony, he will not be allowed to request no alimony because the wife cheated. The main focus instead in Florida will be on the husband’s ability to pay alimony to meet the wife’s needs, and the wife’s contributions, as well as the husband’s to the family during the marriage.
When it comes time to divide the assets and debts, the judge is going take a much more objective approach, really looking at the numbers and finding out what assets are marital and what assets are non-marital, and dividing them accordingly.
So does that mean that the cheating doesn’t matter at all in a no-fault divorce case?
With all of that said, adultery still has a role in divorce cases according to Florida law, albeit a secondary one.
Disposition of Assets (Blowing $$ on Paramours)
A common example deals with one spouse using marital assets and funds to pay for shiny objects and trips with the paramour.
For a common example, consider the husband who is a businessman and who while away on business travels to Texas to meet his girlfriend that he found on Facebook. In Texas, he stays in a five-star hotel and wines and dines the girlfriend. During the holidays, the husband sends the girlfriend expensive jewelry.
While the husband pays for these things out of an account titled in his name only, that account is a marital account in that the husband is funding the account with money that he earned during the marriage.
In this case, the husband will be dissipating marital assets on something inappropriate: paying for his girlfriend. Florida no-fault law carves out an exception in this case. The wife can provide evidence to her divorce attorney of the money spent on the affair, and ask the judge to give her a credit for all the money that was wasted in her final accounting of assets and debts.
Sometimes a spouse may blow through money just because he or she does not want the spouse to have it. The thought process is, “I would rather blow our savings in Vegas then see my spouse get a single dime.”
This sort of misconduct matters as well. Florida allows for assets to dwindle if the money is spent on reasonable things. So, if a separation and subsequent divorce gets expensive and a spouse dips into savings to make ends meet then the judge will not be concerned.
But if a party is blowing through funds unreasonably just to hurt the other spouse, the judge can order an unequal distribution of assets and debts. The judge can find fault with the offending party, and make it right at the end of the day in the divorce case.
Moral Fitness of the Parent
Consider the divorce case where time-sharing or custody is in dispute. The husband has been off with his new girlfriend, a stripper. The stripper and the husband have been staying up until the wee hours, and upon a thorough investigation it appears that the husband is using drugs with the stripper.
Worst of all, the husband and wife are separated and the husband’s been going out while the kids are home sleeping. The husband may have a babysitter, but when the husband comes back the next day he’s unable to wake up to properly care for the kids. If your husband is like this, it is no surprise if he becomes a non-custodial parent.
In the example above the husband’s moral fitness is at issue, it affects his parenting plan, and his decision-making is an issue as it relates to the affair. Whenever this sort of behavior might be detrimental to the children, it’s something that the courts will want to consider when making their decisions.
Finally, consider the human considerations when a party is cheating:
On the judge
So we know that the judge is charged with viewing evidence of cheating in a very limited capacity. But assuming this evidence gets in front of the judge, we have to ask if it will have an impact even on a subconscious level on any alimony or asset division awards.
Unlike civil and criminal cases, divorce cases don’t have a jury. That means instead of six or 12 of your peers sitting in a box deciding the fate of your case, there is only one: the judge. That means the judge has quite a bit of influence and control over what happens with your divorce case.
Simply put: judges are people too. Even the most objective judges still get a sense of who the good guys and the bad guys are in a divorce. And in those close call cases that can go in any direction, you would have preferred to not be the party who has continuously wronged their spouse.
The Cheating Spouse
In the same line, the spouse who has committed some type of fault is a person too. If that person has done some bad things, the last thing that they’re going to want is to expose it in a public forum like a court. They’re not going to want to rehash the bad things that they’ve done, or be confronted with it as part of litigation.
The end result is that we find that when a spouse has seriously wronged the other spouse, like by committing adultery, the person who did the bad things is going to be more inclined to want to seek a resolution sooner and put everything to bed so that they can move on. And this human element can be helpful when it comes to marital settlement agreement.
For example, consider the case of the wife who discovers that her husband has been unfaithful for quite some time. The wife demands a divorce, and the husband agrees. Early in the case, their settlement agreement is going nowhere.
We might find in this case that the husband really would like to put everything to bed. The husband may feel guilty for what he’s done. Or, the husband might be embarrassed for what he’s done and not want his public reputation to be affected. Regardless of the motive, we might find the husband is more willing to settle the case for a premium to the wife so that the husband can move on.
In the end, Florida is a no-fault state, which means you do not have to been wronged by your spouse in order to ask the court for a divorce. Simply, you can tell the court that you are incompatible with your spouse, that you have your reconcilable differences, and you just want to dissolve your marriage and move on.
This also has the positive effect of keeping cases from turning into a mud-slinging contest. In fact, part of our divorce lawyer‘s no-fault statute minimizes the extent to which we can sling mud at the other party especially when it comes to the bad behavior as it relates from spouse to spouse.
However, there are a few places where bad behavior of the spouse to a spouse is relevant and can make a difference in your case. For example, wasting marital money on a new girlfriend, or when the bad behavior also turns out to be detrimental to the children.
And even when the bad behavior isn’t necessarily relevant in court, never underestimate the emotional human impact it can have both on the fact finder and on the other party.