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Do I need to prove fault in a divorce? Is it a factor?

Many events in life can put stress on a marriage. Some of those events are consequences of our own making, like infidelity, while we have little control over others, like a serious illness. What role, if any, do these events play in a divorce? Do you have to prove fault to file in Florida?

In the past, you did. Filing for divorce was largely about "who did what to whom." The law in most jurisdictions required a spouse to prove one of several statutory grounds for divorce such as infidelity, fraud or abandonment. Florida lawmakers abolished grounds based in fault and replaced them with a much lower burden.

Florida is a "no-fault divorce" state. Florida statute 61.052 requires only that spouses declare that their marriage is "irretrievably broken." It has become common knowledge that spouses no longer have to prove fault, but "no-fault divorce" is a concept that is often misunderstood.

The statutory section only eliminates the requirement to prove fault in order to file or obtain a divorce. It does not eliminate any mention of fault in the divorce proceedings. In fact, judges can consider the actions of either spouse and may also be influenced by them in determinations of many aspects of divorce.

What is fault? When might a judge consider fault?

A spouse's definition of fault and a judge's definition of fault do not always coincide. For instance, a spouse's failure to help with household chores or constant nagging may pull a relationship apart. It does not mean a judge will make decisions in favor of one spouse because of these actions. What are some examples?

  • Property division is about equity. Let us say one spouse has a serious gambling problem and used up the funds in a 401(k) or IRA to pay debts. A judge could determine that he or she wasted the marital assets and that it would not be equitable to grant a 50/50 distribution.
  • Alimony is not awarded in every case. If one spouse commits infidelity, a judge may determine that it would not be fair to then grant that spouse the full amount he or she requested. The judge may reduce the award.
  • Child custody is determined based on the best interests of the child. A parent could be awarded sole custody if the judge determines the other is abusive. A judge could also order supervised visitation if he or she suspects that abuse could be a factor.

You may believe that fault should be considered in your divorce, or you may be on the receiving end of allegations. In either situation, it is crucial that you have an experienced attorney to help guide you through the process, because modifying an order is not always easy or possible.

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Tannenbaum Scro, P.L.
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