Types of divorce: Pursuing a fault divorce based on adultery in Florida

As has been reported by USA Today and numerous other media outlets, international TV star Simon Cowell been named as a co-respondent in the New York divorce between his best friend and his wife. Even though New York was the last state to add a no-fault ground for divorce in 2010, Cowell's best friend has listed adultery in his divorce papers and accuses his wife of "inhuman treatment," based upon the commission of acts of adultery. Alleging adultery anywhere in America can turn a divorce proceeding into a morality play. When the parties are socially prominent, the details make for great gossip. But is adultery really relevant in the days of no-fault divorce?

Pursuing adultery in Florida?

Adultery is one of the oldest grounds for divorce and historically has been considered the worst possible violation of marriage vows. In Florida, however, a dissolution of marriage in Florida may be granted based on the grounds that: (1) the marriage is irretrievably broken; or (2) one of the spouses is mentally incapacitated for a preceding period of at least three years. For purposes of the divorce itself, the adultery of one of the spouses is simply irrelevant. That does not mean, however, that the adultery of one of the spouses is not without possible consequences.

Taking marital infidelity into consideration

If one spouse committed adultery, it might affect other elements of the divorce, particularly on issues of custody and visitation. Before a court determines which parent should obtain custody of the child, the court must consider the "moral fitness" of a parent and what is in "the child's best interests." A parent's sexual conduct and whether the conduct has or is reasonably likely to have an adverse impact on the child is certainly something that the court will take into consideration when making its decision.

As recently stated by the Florida District Court of Appeals, when a parent's alleged adultery is at issue, the act of adultery should not be taken into consideration in determining custody if the trial court finds that the spouse's adultery does not have any bearing on the children's welfare. Thus, adultery or marital misconduct, however, will not necessarily establish parental unfitness and other factors may be considered. There are no hard-and-fast rules.

Given the difficult emotional and far reaching ramifications of spousal infidelity in child custody determinations, the advice of an experienced Florida divorce attorney is extremely important to adequately evaluate the circumstances of each case. If you are contemplating divorce, contact a family law attorney to better under the options for your particular case.