Although you may feel that you or your spouse are ‘at fault’ for your divorce, the court looks at things a little differently. Years ago, Florida removed the requirement that a petitioner to a dissolution of marriage proceeding must show that one party was ‘guilty’ of breaching a contract to marriage in order to be granted a divorce. As a result of the abolition of the ‘fault’ requirement, couples are now able to more freely petition the court for a dissolution of marriage. The only grounds to which a couple must agree to when getting a divorce in Florida is that the marriage is “irretrievably broken.”
Issues with “At Fault”
There are a lot of issues that come into existence when parties start pointing fingers back and forth for who is to be at fault. First and foremost, it is a recipe for disaster when it comes to truthful testimony. The result of this, are couples who are able to collude with one another to convince the court that the marriage should end, are granted a divorce. On the other hand, in extremely damaging cases, there are many spouses who will perjure themselves to punish a spouse for filing, and ultimately leads to the court denying the request for divorce. Lastly, by eliminating ‘fault’ a requirement for dissolution of marriage, parties have a higher likelihood of eliminating hostility and contention in divorce proceedings.
The Exception to “No Fault”
There is one exception to the “no fault” grounds to divorce, and that is incapacity. If you believe that your spouse is incapacity, and that is sole reason for your divorce, you may file for divorce based on those grounds. However, in order to divorce your spouse on such grounds, your spouse has to have been adjudicated by the court incapacitated for a minimum of three years prior to filing for divorce.
Is There Any Recourse Against an At Fault Spouse?
Just because Florida is a no-fault state, and the judges are not entirely interested in the ‘he said-she saids’ of your marriage, does not mean that a spouse who acted with misconduct during the marriage is not going to suffer any recourse for their actions. Some examples to which the court may provide financial recourse of a spouse are:
- Dissipation of Assets: Upon a claim of dissipation of assets, the court may look back two-years from the date of filing for divorce to determine if a spouse was guilty of dissipating assets. This does not mean ‘over-spending’ this means intentional misconduct and misappropriations of marital funds. If dissipation of assets is found, the court may award a credit to the affected party.
- Adultery: Although infidelity happens, and it can be devastating, the court can only do so much to make the victim-spouse whole again. The court is not able to punish a spouse for infidelity; however, they are able to compensate the non-cheating spouse to the extent that marital funds were spent on the mistress/paramour (gifts, vacations, etc.)
- Potentially Alimony: When awarding alimony in a divorce the court has the ability to award it based on a number of statutory factors, one of which is “any factor necessary to do equity and justice between the parties.” This statute is vague but also gives the court flexibility to make adjustments based on factual findings. However, before any alimony can be awarded, there still needs to be a finding for “need” of the receiving spouse, and an “ability to pay” on the paying spouse.
- Child Custody: Although child custody is not the number one thing that people look at when it comes to ‘fault’ in a divorce, if the reason that leads to the divorce has to do with neglect or abuse of children in the marriage, the court may, if proven, take that into consideration when creating a time-sharing plan.
Every dissolution case is very different, and many different factors can play a role into the court’s decision on how to award assets, and order other forms of relief. If you have questions about what relief you may be entitled to as an outcome of your divorce, we encourage you to reach out to an attorney for more information.