Divorces can often be contentious matters. It may be especially fractious if one of the spouses was allegedly having an affair. If you are facing a high-dollar divorce, it is important to understand how your spouse’s allegations of your infidelity can – and cannot – impact what the judge orders in terms of equitable distribution. To make sure that you don’t get shortchanged and that the distribution you get complies with current Florida law, be sure you have a knowledgeable Florida divorce attorney advocating for you.
H.D. and G.D. were a couple whose divorce case involved allegations of unfaithfulness. The couple married in Cuba in 1967. 48 years later, the husband file for divorce in Miami. The wife asked the judge to award an unequal distribution because of the husband’s adultery. Specifically, the husband allegedly spent marital funds on the mistress and did not collect rent from the mistress (who lived in an East Hialeah rental property that the husband and wife owned.)
The trial judge ruled that the wife was entitled to something called “special equity” and awarded her an unequal distribution. (The wife received $605,000 in assets; the husband $258,000.) The husband appealed that ruling and won his appeal. The trial court’s decision had to be reversed because Florida doesn’t recognize the legal concept of special equity, and hasn’t since 2008.
The law says that a judge can make an unequal distribution of marital assets based on a spouse’s adultery, but that distribution can’t be simply punitive. In other words, the judge can’t just award the cheated-upon spouse a sum of money to penalize the adulterous spouse. The judge, however, can award the cheated-upon spouse, through unequal distribution, an amount equal to the marital funds that the adulterous spouse dissipated (or depleted) by spending them on his paramour, but the spouse seeking an enlarged distribution must prove on the record that marital assets were spent on the affair.
So, in the case of this couple, the judge couldn’t simply award the wife $347,000 of special equity. The judge could, however, hold a hearing, take evidence and make findings regarding exactly how much the husband spent on the mistress’s bedroom set that he bought with marital money, how much marital money the husband spent on his cruise to Mexico and the Caribbean with the mistress and how much rental income the couple missed out on because the husband failed to collect rent from the mistress. Once the judge determined the sum total value of those things, then the court could award unequal distribution in an amount equal to that sum, because that was the amount of marital assets that the husband had wasted, dissipated or depleted on the mistress.
A prenuptial agreement may be a good way around this sort of contentious litigation
There can be a way to avoid some of the hostility and court wrangling that is often involved in high-dollar divorce cases where one spouse allegedly had an affair, and that way is a prenuptial agreement. Florida law can allow you to customize your prenuptial agreement in many ways. One customization is an “infidelity clause,” which can call for the cheated-upon spouse to receive an extra sum if the other spouse was established to have been having an affair. For example, the New York Daily News reported that actress Jessica Biel has a prenup that entitles her to an extra $500,000 if her husband, singer Justin Timberlake, is found to have been having cheating. Reportedly, actor Michael Douglas would owe his wife, actress Catherine Zeta-Jones, a “$5 million bonus” if the husband is found to have been unfaithful.
Whatever one’s moral position on adultery, the law in Florida places limits to what a civil court can do to an adulterous spouse as part of a divorce action. If your spouse alleges you were having an affair, it is important to make sure you protect yourself and your assets. Call upon the skilled South Florida divorce attorneys at Stok Kon + Braverman to help. Our attorneys have many years of experience successfully handling divorce cases on behalf of both husbands and wives.
Contact us online or by calling (954) 237-1777 to schedule your consultation.