He/she cheated: Does it matter?

After 13 years of marriage and two children, it’s all over after Gavin Rossdale is caught cheating with the couple’s nanny for three years. An iPad that was, allegedly, linked to his cell phone revealed nude photos and incriminating text messages that ultimately broke apart his marriage to Gwen Stefani.

A devastating discovery like this one can leave questions of trust burning in a person’s mind for some time. But after those trust questions have been answered, a legal question still remains: Does the fact that you found your spouse cheating have any bearing on your divorce case in court?

Well, maybe. Florida is a “no-fault” state. A party is required to tell the court only that the marriage is “irretrievably broken,” meaning that there is nothing the court can offer you to reconcile because your marriage is irreparable. In other words: The actual reason for the breakdown of the marriage is irrelevant to the court.

But there are some limited circumstances in which adultery may come into play. Florida Statute 61.08(1) states that “the court may consider the adultery of either spouse, and the circumstances thereof, in determining the amount of alimony, if any, to be awarded.” The court may also consider adultery when it comes to developing a Parenting Plan; the actions of the adulterous parent may not be in the best interests of the children in some egregious cases.

Further, when it comes to the division of assets and debts, Florida Statute 61.075(1)(i) states that the court starts with the premise that the distribution is equal. However, the court may consider several factors and award an unequal distribution, if appropriate. One of those factors is “the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.”

In other words, if a spouse is wasting marital funds (i.e., “dissipating” assets) on his or her extra-marital relationship(s), the court may consider that evidence and award the other spouse more assets than he/she would have been entitled to otherwise. However, courts usually will not consider that evidence unless the dissipation is significant.

For example: A wife earns double the amount of income than her husband does, and she handles all of the finances in the marriage. The husband discovers that the wife is being unfaithful, and the husband then files for divorce immediately. Soon thereafter, the husband finds evidence that the wife has recently purchased an apartment and a car for her paramour, and that she’s funding lavish European vacations for the two of them. The court will likely consider this because the dissipation has been significant. Conversely, if the husband found only a few receipts evidencing that they went to lunch together, the court probably will not consider it.

Applying this to Gavin and Gwen (if their divorce was in Florida): It would be unlikely that the court will be interested, unless: 1) Gwen asks for alimony, and the court considers his infidelity as a relevant factor when determining the amount; 2) the court considers his infidelity against the best interests of the children, and it takes that into account when developing the parenting plan, or 3) Gavin spent significant marital assets on his paramour(s).

So, although Florida is, indeed, a “no-fault” state, a court may consider infidelity…but only if the circumstances are right.

 

 

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances.  No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

CO-PARENTING DURING THE HOLIDAYS

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The holidays are supposed to be a joyous time in which we spend some much-needed quality time with our loved ones. However, for some, this season isn’t quite as cheerful as it should be. Some families are split into two different households, and they may be dealing with the heartache of spending the holidays apart for the first time.

For those families with children, that heartache may be amplified. What if the holidays are more important to me than they are to the other parent? Should we split all of the days of Hannukah? Who gets the children for Christmas Eve and Christmas day? And what happens on New Year’s Eve and New Year’s Day?

If you’re struggling with these issues, there are several ways you can resolve them:

Share the holidays together. If you and the other parent are on good terms, try spending the holidays together. This may be difficult, but keeping the family cohesive will only benefit the children.

Share the holidays apart. If you and the other parent aren’t in a place where you can share the holidays together, try splitting them so that the children see both parents on each holiday. For example, if you’re having an early Christmas Eve, and the other parent’s festivities aren’t starting until later, then have your children for the first half of the day. Then, let the other parent pick up the children so that he or she may have the children for the second half of the day.

Split the holidays. Perhaps Christmas Eve is more important to you than it is to the other parent. However, the other parent really cherishes Christmas Day with the children. You can split the holidays so that each parent is accommodated. For example, you can have the children on Christmas Eve, and New Year’s Eve, and the other parent can have the children on Christmas Day and New Year’s Day. Then, next year, you can alternate them, if you wish (or keep it the same every year).

Celebrate before or after the holidays. If you know that the other parent and his family always take a trip out of state during the holidays, try to accommodate the trip by celebrating with the children on a different day. You may not love the idea of celebrating Christmas with the children a few days later, but this will foster cooperation between you and the other parent. In the future, when it’s your turn to travel, he or she may be more open to allowing it.

Be flexible. Try your best to work as a team with the other parent. Holding a grudge and trying to make scheduling difficult will affect the children, which you should always try to avoid. Your flexibility is in their best interests.

If all else fails, seek help. There may be a respected family member, a priest or rabbi, or a mutual friend who is willing to step in and help both of you sort it out. If you don’t have anyone available to help you, perhaps you can seek the help of a reasonably priced mediator to settle the dispute. If none of these options work for you, then you can always find a lawyer you trust and ask the court for assistance.

No matter what, encourage your children to love the other parent. The holiday season is one for love and kindness. Give your children positive memories of this special time of year by fostering affection for the other parent, regardless of how you may feel personally. Your separation is for you and the other parent to deal with; don’t place the burden on your children.

 

 

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances.  No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

“We’re Divorcing. Who Gets the Ring?”

Cut, clarity, carat, color, certification (and sometimes the 6th “C” word: cost). If you’ve ever thought about proposing to your sweetheart, then you’ll quickly learn the “C’s” of engagement-ring shopping. Yet, there’s another “C” that some people battle with when it comes to this beloved item: custody. When a relationship doesn’t work out, who keeps the ring?

This is a question that lawyers are faced with often, and the answer is not so “clear cut.”

Florida courts were faced with the question of the engagement ring for the first time 40 years ago in the case of Gill v. Shively, 320 So. 2d 415 (4th DCA 1975). The couple had not yet married when their relationship broke down, and the giver of the ring, Mr. Gill, wanted his former fiancé, Ms. Shively, to give him the ring back.

Florida courts had never been presented with this issue before. So, there were no other similar Florida cases that the court could look to for guidance. As a result, the court looked to the law of other states for some assistance.

In its research, the court saw that, in some other states, the law allows the giver of the ring to take it back if the engagement is terminated by either the recipient of the ring or by mutual consent of both parties. So, under the facts of Mr. Gill’s particular case, the court ruled that he was allowed to take back the engagement ring.

The law in Florida today still follows this 1975 ruling. If the engagement ring was given as a condition of a marriage, and the couple never married, the recipient should return it because the condition was never met. However, if the couple did marry, and they are now divorcing, the engagement ring is non-marital property that belongs to the recipient, and he/she gets to keep it in the divorce. See Melvik v. Melvik, 669 So. 2d 328 (Fla. 4th DCA 1996); Greenberg v. Greenberg, 698 So. 2d 938 (Fla. 4th DCA 1997); Rosen v. Rosen, 738 So. 2d 474 (Fla. 4th DCA 1999); Malone v. Malone, 929 So. 2d 541 (Fla. 1st DCA 2006).

Some ring-givers have tried to carve out specific exceptions to this general rule. In Randall v. Randall, 56 So. 3d 817 (Fla. 2d DCA 2011), Mr. and Mrs. Randall actually married. However, Mr. Randall argued that the ring should be returned to him because it was a family heirloom. The court, unfortunately, did not agree, and the general rule remained firm.

It may appear that the law in Florida regarding engagement rings is well defined, and it is, when it comes to the scenarios discussed above. But there appears to be some “wiggle room” that hasn’t been fully explored yet.

Suppose you propose to your sweetheart on Valentine’s Day, and you give him/her the ring as a Valentine’s Day gift/engagement ring (perhaps you wanted to kill two birds with one stone). Was the ring truly a condition of the marriage? Or was it a general Valentine’s Day gift, regardless of whether the marriage goes through? Under those circumstances, the court may find that it was a gratuitous gift and that the recipient of the ring should keep it, even if the condition (marriage) was never met.

Also, the Gill court addressed what should happen if the recipient of the ring terminates the engagement, or if the couple mutually agrees to terminate it. But what if the giver of the ring terminates it? Or what if the giver of the ring does something inappropriate that makes the recipient end it (e.g., infidelity or fraud)? Should he/she be entitled to take the ring back when the engagement ended because of him/her?

There may also be questions of fact on whether the recipient actually terminated the engagement or whether he/she merely postponed it. Going back to the Gill case: What if Ms. Shively had told Mr. Gill that she didn’t want to get married right now, but that she wanted to take a break from the relationship before deciding? Is that an actual termination of the engagement? Should she be able to keep the engagement ring while she decides? And if so, for how long?

These could all be somewhat open questions that the court may look at differently, if anyone ever presents them. To date, no one has. Perhaps Florida courts will give us some “clarity” on these unsettled questions in the future.

 

 

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently, and it varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed by this blog post nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

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