He/she cheated: Does it matter?

After 13 years of marriage and two children, it’s all over after Gavin Rossdale is caught cheating with the couple’s nanny for three years. An iPad that was, allegedly, linked to his cell phone revealed nude photos and incriminating text messages that ultimately broke apart his marriage to Gwen Stefani.

A devastating discovery like this one can leave questions of trust burning in a person’s mind for some time. But after those trust questions have been answered, a legal question still remains: Does the fact that you found your spouse cheating have any bearing on your divorce case in court?

Well, maybe. Florida is a “no-fault” state. A party is required to tell the court only that the marriage is “irretrievably broken,” meaning that there is nothing the court can offer you to reconcile because your marriage is irreparable. In other words: The actual reason for the breakdown of the marriage is irrelevant to the court.

But there are some limited circumstances in which adultery may come into play. Florida Statute 61.08(1) states that “the court may consider the adultery of either spouse, and the circumstances thereof, in determining the amount of alimony, if any, to be awarded.” The court may also consider adultery when it comes to developing a Parenting Plan; the actions of the adulterous parent may not be in the best interests of the children in some egregious cases.

Further, when it comes to the division of assets and debts, Florida Statute 61.075(1)(i) states that the court starts with the premise that the distribution is equal. However, the court may consider several factors and award an unequal distribution, if appropriate. One of those factors is “the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.”

In other words, if a spouse is wasting marital funds (i.e., “dissipating” assets) on his or her extra-marital relationship(s), the court may consider that evidence and award the other spouse more assets than he/she would have been entitled to otherwise. However, courts usually will not consider that evidence unless the dissipation is significant.

For example: A wife earns double the amount of income than her husband does, and she handles all of the finances in the marriage. The husband discovers that the wife is being unfaithful, and the husband then files for divorce immediately. Soon thereafter, the husband finds evidence that the wife has recently purchased an apartment and a car for her paramour, and that she’s funding lavish European vacations for the two of them. The court will likely consider this because the dissipation has been significant. Conversely, if the husband found only a few receipts evidencing that they went to lunch together, the court probably will not consider it.

Applying this to Gavin and Gwen (if their divorce was in Florida): It would be unlikely that the court will be interested, unless: 1) Gwen asks for alimony, and the court considers his infidelity as a relevant factor when determining the amount; 2) the court considers his infidelity against the best interests of the children, and it takes that into account when developing the parenting plan, or 3) Gavin spent significant marital assets on his paramour(s).

So, although Florida is, indeed, a “no-fault” state, a court may consider infidelity…but only if the circumstances are right.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances.  No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.