What role does “fault” play in Florida?

November 10, 2011 by

Florida is a state that recognizes what is commonly called “no-fault” divorce. That is, that Florida’s judicial system allows individuals seeking to dissolve their marriage to simply claim that their marriage is “irretrievably broken” in order for a court with jurisdiction to allow the marriage between the parties to be dissolved. While this is the case, I regularly field inquiries from clients and potential clients about what impact “fault” plays, if any, in their respective divorce. “Fault” can be any number of concepts but most commonly “fault” would be something like one spouse engaging in extramarital affair or adulterous exchange with a paramour. So, the question stands, what role does “fault” play in a state that allows no-fault divorce?

For starters, a court in Florida will not, in essence, require either party to state that there has been “fault” committed by the other party to grant a divorce so, it could be argued that the parties do not have to enter into the “mud-slinging” that would occur if proof of “fault” was required. Although this is one of the ideas behind no-fault divorce, rarely does a dissolution occur, where fault has occurred, that the parties and/or their attorneys do not at one point bring up the issue of fault. Why? Well, while Florida is a no-fault divorce state, “fault” is a consideration in several instances. For example, every divorce requires that there be what is called equitable distribution of marital assets and liabilities. If, for example, one party to a divorce had an extra-marital affair in which that party spent marital assets toward the extra-marital affair, i.e. buying their paramour extravagant gifts, then during equitable distribution the party on the opposite side, the one who did not commit the extra-marital affair, could potentially ask for a credit in which they would be able to recoup some of the money that was spent on the extra-marital affair that came from marital assets. Additionally, fault becomes a consideration when the parties to a divorce have minor children and time-sharing, a.k.a. custody, needs to be determined. In this situation, the party against whom fault is charged could potentially see the normal 50/50 time-sharing presumed under the Florida statutes diminished because of the questionable morality of having an extra-marital affair that occurred during the marriage. Lastly, marital fault plays a role when spousal support or alimony is to be determined by the parties. Florida Statute §61.08 deals with alimony in Florida and it specifically states, “The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” F.S. §61.08 (2011).

In conclusion, while Florida is known as a no-fault divorce state, the “fault” of either party is at least considered by the court when dealing with certain aspects of a divorce proceeding. Overall, whether served with a petition for dissolution of marriage or a person is considering to file for dissolution of marriage, the concept of marital fault is just one of the concepts that a skilled Orlando divorce attorney would be able to guide you efficiently through.

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