In the Case of Infidelity Does the Court Care Anymore?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Sydney Mitchell:
Well, Hey everyone. I’m Sydney sitting here with Matthew on today’s episode of Mediate This! We have been receiving tons of questions from you, our listeners, for us to talk about, and today we’re gonna be tackling one of those questions. This question reads in the case of infidelity, does the court care anymore? So I read that question. It is a very, I’m excited to talk about it. It’s a very general question. So I don’t, obviously we don’t know the individual circumstances. Matthew, give us insight into what, what our listener might be asking about. Um, I’m just gonna read it again in the case of infidelity. Does the court care anymore take that where you will?

Matthew Brickman:
Yeah, so, so my first, first, first response is gonna be what you and I love to say over and over and over again. Is

Sydney Mitchell:
It about knowing the laws of your state?

Matthew Brickman:
Yes.

Sydney Mitchell:
Yes.

Matthew Brickman:
<laugh> yes. Be sure to know the laws of your state.

Sydney Mitchell:
Amen.

Matthew Brickman:
Yeah, it depends. Like, you know, it depends on, well, what are your laws of your state? Do they weigh in fidelity as a factor or not? But let me just talk about this sort of in a broad stroke.

Sydney Mitchell:
Yes. And then my side question, as you’re talking about it broadly, talk about what types of decisions may or may not be being made with infidelity in mind.

Matthew Brickman:
Okay. So that was where I was going.

Sydney Mitchell:
Okay, great.

Matthew Brickman:
Yeah. So the obvious one, the first and foremost, obvious one, I think is, um, alimony. You know, people like, oh, they cheated, therefore now we’re getting a divorce. Okay. Is that a factor again? Know the laws of your state, if you’re, if, if you’re in an at fault state, well then the court may care because the court doesn’t even have the power to grant a divorce, unless someone is at fault. If no one’s at fault and you’re in an at fault state, a lot of people just, you know, say you’re reconcilable differences, but if it actually isn’t fidelity, well, then the court will probably care. And that might come into play when talking spousal support or alimony,

Sydney Mitchell:
Would you just define, uh, really quick what it means to be an at fault state for those who may not have listened to previous episodes? We’ve talked about that.

Matthew Brickman:
Yeah. So there are still a couple of states in the United States that are considered at fault states, which means that the court cannot grant a divorce unless somebody has been named to be the cause of the divorce. So in those states, usually if no one is at fault and the people still wanna get divorced, but someone has to be at fault, they will then just cite IR reconcilable differences. If you live in a no, no fault state, well then nobody has to be at fault. You don’t have to cite anything. You just file. And the court will then just give you a divorce. And

Sydney Mitchell:
That’s the case for, for most states nowadays.

Matthew Brickman:
Yeah. Yeah. And, and, and you and I are in Florida, Florida is a no fault state. So nobody has to be at fault. The court can, you know, grant a divorce without, so infidelity usually is used in the term of spousal support. Okay. Now infidelity, um, can also be used in equitable distribution. So say, for example, I’ll give you an example. I had mediation a week ago. Yeah. It was a week ago where the wife had an affair, um, in the marriage. So when it came to now, so, so, but I just said we are in a no fault state. So what does the court care they’re gonna grant a divorce? Well, yeah, but they care because she was spending or we use the term dissipating, she was spending marital monies on an extra marital affair. So the, so say for example, that there were $10,000 in a joint bank account and the wife spent a thousand of those dollars on her extra marital affair for like hotel rooms and stuff.

Matthew Brickman:
And we actually had this where, I mean, had the credit card bills, had all the hotels. So they were within like three miles of their home. And it’s like, well, you’re not just spending the night, like three miles, right? Like what’s really going on when they, and when they got the credit card bills, they’re like, wait a second. And then they’re like, wait a second. These restaurants, I haven’t gotten need at that restaurant. So if there’s $10,000 in there and let’s just say that the wife has used a thousand dollars, well, technically if there’s $10,000, five of it is the husbands five of it’s the wifes. But if the wife has already spent a thousand UN dissipated that, well, now there’s gonna be an unequal distribution instead of five and five will be six and four mm-hmm <affirmative>. Right. So do they care? So again, the question is, in the case of infidelity, is the court care? Well, we’re in no fault state, but it will be a factor in equitable distribution. Now let’s move over to another issue. Um, which is, is child support one, well, we’re gonna move into parenting, which then impacts child support. Okay,

Sydney Mitchell:
Go,

Matthew Brickman:
Go, go. So, so child support itself. No, but I have had people try to use an extra marital affair in deciding parenting issues saying, well, it goes to character, they are a bad C, they made bad moral decision, which ruined this marriage. Therefore, I don’t want that decision making RA in, in, in raising our children. So they’ve said we should not have equal time sharing, or I wanna limit the amount of time sharing that that other parent gets because they had an affair.

Sydney Mitchell:
Does that tend to hold up?

Matthew Brickman:
No.

Sydney Mitchell:
Okay.

Matthew Brickman:
No. Um, not that I’ve ever seen because, because, because, because in Florida, what the statute says in 61 30 is that the court shall order that parental responsibility be shared unless the court specifically finds the shared parental would be detrimental. So just because somebody made a decision and cheated, well, that would not put the child in harm’s way. Yeah. You’re off and you’re jaded because your spouse cheated on you. But that does not mean that, that, that, that may make them a really bad spouse, but that doesn’t make them a bad parent. Right? Sure. Um, then for time sharing then in Florida, at the time of recording this, the statute says that the child is entitled to frequent and continuing contact with both parents. So the parents can enjoy the joys rights responsibilities of Childry. So when a parent says, well, I don’t think they should have thank you for playing.

Matthew Brickman:
It’s not yours to give the child is entitled to it. So you don’t have the power to take it away. And if you don’t have the power to take it away, that means you don’t have the power to grant it, which means infidelity doesn’t matter. But I have had people try to use that as an argument in mediation. Um, but, and so those are really like, those are really the only three places that a court could care. It’s important to know the laws in your jurisdiction and in your state. Um, but the only place that it could be is if you, if, if people try to use it for parenting issues or, or marital dissipation in waste under equitable distribution or spousal support, um, those are the only three places you can really use it that I can think of. So hopefully that answers the question for that listener who asked us, um, do you have any other questions regarding that Sydney?

Sydney Mitchell:
No, I don’t think so. I, those are the only factors that I can think of. Yeah. Um, yeah, for that listener, if, you know, if you have more questions concerning that topic, please send them our way. But no, I feel like that’s, that’s all I’ve got.

Matthew Brickman:
Yeah. That’s all I’ve got too. So yeah. I mean, I, I agree with you Sydney, whoever submitted this question, if you want more details, get ahold of us, let us know. We’ll, we’ll be sure to answer.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.