Extramarital Affair and Alimony in Florida Divorce

December 29, 2016

 

Unfortunately, most marriages now have a high likelihood of ending in divorce. Adultery is a common cause of these divorces. If your spouse had an affair and you are contemplating divorcing, you should know that the affair alone, will not have a huge impact on the divorce process. Florida is a “no fault state.” Meaning, the judge will not punish your spouse for having an affair, unless you are able to show that they used marital funds to further the affair.

 

In a divorce proceeding, the court may consider awarding alimony or financial support to either party. The court will begin its analysis by first making a specific factual finding as to whether either party has an actual need for alimony and whether the other party has the current ability to pay. According to the Florida Statute 61.08, in making that determination, the court may consider the adultery of either spouse and the circumstances of the adultery in determining the amount of alimony. However, case law has made it clear that absent a showing of a related depletion of marital assets, a party’s adulterous misconduct in not a valid reason to award a great share of the marital assets to the innocent spouse or to deny the adulterous spouse alimony.

 

The innocent spouse has the burden of showing the court that there was depletion of marital assets. The court must be told and evidence must be presented to show how  much money was used from marital funds for non-marital purposes, like the affair. During the dependency of the divorce, each spouse will have the opportunity to request and review financial documents from the other. Bank account statements, credit card statements, receipts, and questionnaires will all be exchanged. Some may need to hire a private investigator to show the exact of amount of funds used towards the affair. Keep in mind that despite the amount used for the affair, need and ability to pay remain the primary concern of the court. Additionally, it is up to the court’s discretion to weigh the significance of the affair, especially where there is no evidence of the amount depleted from marital assets.

 

Currently, there are four different types of Alimony that the judge can grant when terminating the marriage: bride the gap, rehabilitative, durational, or permanent, or a combination therefore. In addition, the court may award temporary alimony while the case is pending.  

 

Bridge the gap alimony is awarded to assist a party by providing them support to allow them to transition from being married to being single. This allows a party to present their short-term plan on how they will transition from being married to single. This plan may include for example a training program or certification course to prepare them to return to the job market. Bridge the gap alimony cannot exceed 2 years. It also ends if the person receiving it remarries or upon the death of either party.  The amount cannot be modified in amount or duration.

 

Rehabilitative alimony is awarded to assist a party in establishing the ability to support themselves through the redevelopment or previous skills, education, or training. There must be a specific rehabilitative plan. This type of alimony can be modified.

 

Bridge the gap and rehabilitative alimony are great sources of relief for victims of domestic violence that are trying to get back on their feet. Where you are able to show the judge that you have a financial need for more than a short term support, the Court is able to award durational or permanent alimony.

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