Last week Ashley Madison, the website that is marketed as an online dating service for “discreet encounters” and “extramarital affairs,” was hacked.
Those responsible threatened to release information about millions of the website’s customers who have engaged in such casual encounters.
This led to widespread speculation (albeit highly unlikely) that there would be a run on divorce filings across the country should spouses learn that their loved one was among Ashley Madison’s clients. It also has led to questions about how infidelity is handled in the divorce process. The answer depends upon where you live.
Florida, for example, is a no-fault divorce state. This means that anyone can file for divorce and get it simply on the grounds that they no longer are compatible.
Judges, for the most part, are not interested in couple’s dirty little secrets or internal bickering. However, when it comes to adultery, the victim could have more of an upper hand when it comes time to dividing marital assets, child custody and alimony – if certain criteria are met.
Judges generally follow Florida’s equitable distribution statute. However, if a spouse’s cheating results in a diminishment of the couple’s assets (for example, the husband used the couple’s shared savings to provide his girlfriend with a place to live or bought her expensive gifts), then the judge can take that into consideration when it comes time to distribute assets.
Also, if the cheating spouse and the person with whom they are having an extramarital affair conspire to hide marital assets, that could be considered a violation of that spouse’s fiduciary duty to protect and disclose marital assets. Such a conspiracy would be relevant when the court determines how to distribute marital assets and debts.
It also can impact decisions relating to child custody, but most likely will not. Judges are supposed to first look at what is in the best interest of the child. So, the question would become how does this adulterous relationship impact the child? Adultery can bring into question the “moral fitness” of the parent, but most judges agree that a parent’s behavior while away from a child has no bearing on a custdy decision. Also, introducing a new love interest to the children during the course of the divorce may not be considered in the child’s best interest and the court may take that into consideration when developing a parenting plan.
The courts also can take adultery into consideration when setting alimony, especially if a judge finds that the person engaging in the adulterous behavior spent the couple’s marital assets on the person with whom they were having an affair. Fla. Stat. 61.08 does permit a Florida divorce court to consider adultery of each spouse and the circumstances in the determining the amount of alimony, if any, is to be awarded.
People cheat on their spouses for many reasons. This latest hacking incident involving Ashley Madison only serves to show that those who engage in such infidelity not only might end up in divorce court, but also might end up on the losing end when it comes to dividing assets, child custody and alimony.
Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation.
Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.
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