By now, you no doubt know the morally dubious adultery-themed website Ashley Madison has been breached and its registered users were unwitting victims of a massive data breach by anonymous hackers.  The registered user’s e-mail addresses, credit card numbers, sexual fantasies and other personal information are floating in a shadowy corner of the Internet.

The sheer numbers are staggering:

  • 33 million Ashley Madison user accounts leaked.
  • 500,000 Canadian dollars reward for information on the hackers
  • 300 gigabytes of data reported stolen by the hackers.
  • 197,000+ e-mails leaked from the Chief Executives work account.[i]

The world and divorce lawyers are snickering, but the data dump is no joke. It has sparked lawsuits, turned lives upside down, engagements and wedding have been cancelled after partners were discovered to have cheated or even just had Ashley Madison accounts, and it has been linked to suicides, and altered attitudes toward cyber privacy and forced the company’s chief executive, Noel Biderman to resign.

For Florida residents the question is what effect does adultery by either spouse have on divorce proceedings.  Florida is a “no fault” divorce state.  That means that either party may seek a divorce and all that is necessary is to show that the marriage is “irretrievably broken.”  This relieves the court from deciding who caused the divorce, and spares the parties from having to bring up painful personal conduct issues.

Adultery and Child Custody

However, if one spouse committed adultery it can affect issues of child custody.  Moral fitness is one of several factors the court considers in making decisions about child custody.  If one of the parties can show that the other parent’s adultery had, or is reasonably likely to have had, an adverse impact on the child or children of the parties, the judge could limit the offending parties custody or visitation with the children.

For example, the sudden exposure to a partner in a new dating relationship when a divorce is pending may not be regarded as being in the best interest of the children.  Further, if a parent is unavailable to exercise custodial time with the children because of involvement with a romantic partner, this may also be an issue the court may consider when determining an appropriate parenting or timesharing plan.

However, before the court can consider a parent’s “moral fitness” in connection with establishing a parenting plan or determining parental responsibility, the conduct in question must have a “direct effect or impact” on the minor child.  See Smith v. Smith, 39 So. 3d 458, 460 (Fla. 2d DCA 2010).

Adultery and the Division of Property

Florida is an equitable distribution state.  The presumption is that absent other factors the marital assets and liabilities of the parties should be equally divided.  However, this presumption can be overcome by showing that one spouse has wasted, dissipated or used marital assets on another person.

In some adulterous relationships, for instance, the adulterous spouse spends large amounts of money buying his or her paramour extravagant gifts, paying for lunches or dinners, paying for vehicles or paying rent.  Or the adulterous spouse may be financially supporting his or her paramour to the detriment of his or her spouse and family.  Where the adulterous relationship has caused some sort of injury or harm to the non-adulterous spouse, a court can take this into consideration and award the injured party a greater share of the marital property.

Adultery and Alimony

Under Florida law adultery is a factor that is considered in determining the amount of alimony to be awarded to a spouse.  The courts have struggled to reconcile the consideration of adultery with the no fault concept.  But judges will increase the amount of alimony that is paid if the adulterous conduct of a spouse somehow increases the monetary need of the other spouse.

The effect of adultery on divorce proceeding is not a black and white issue.  There are many factors that can influence a judge’s decision.  Having an experienced attorney to assist with your divorce is vital.  It is best to consult with an experienced family law attorney to determine how the adulterous conduct of a spouse may affect your divorce.

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[i] Baraniuk, Chris. “Ashley Madison: Two Women Explain How Hack Changed Their Lives – BBC News.” BBC News. N.p., 27 Aug. 2015. Web. 28 Aug. 2015.