True – but the new alimony law enshrines the requirement that for adultery to influence the amount of an alimony award, it must have caused financial harm. Did a spouse shower gifts and money on a paramour to the detriment of the marital bottom line? Did a cheating spouse’s behavior harm the other in a way that increased the innocent spouse’s financial needs after divorce?
News reports about the major alimony reform bill that the governor just signed and that took effect on July 1 have focused mostly on the end of permanent alimony. The next most discussed topic is probably the new procedures for retiring alimony payors to petition for a reduction or elimination of their alimony responsibility.
The change to the impact of adultery in a judge’s decision making about alimony is less dramatic and perhaps more subtle, but it could have major impact in some divorces.
The old is new again
Even before the new law, courts hearing divorce cases could consider adultery within marriages in setting alimony amounts. The language of the statute said that “[t]he court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” (Emphasis added.)
After the amendment, the law reads, “The court may consider the adultery of either spouse and any resulting economic impact in determining the amount of alimony, if any, to be awarded.” So, “adultery of either spouse and the circumstances thereof” has become “adultery of either spouse and any resulting economic impact.” (Emphasis added.)
Looking at the change literally, you could say that the scope of what the Florida judge setting the amount of spousal support can consider about extramarital behavior has narrowed. Before, the law said vaguely and broadly that the “circumstances” could be factored into the decision. Circumstances of infidelity are certainly multifaceted and include issues of betrayal, problems with the marital relationship, potential mental health or emotional problems – the list is endless and varies with each marriage.
Now, the law restricts the judge to considering only the financial or economic impact of unfaithfulness. So, instead of virtually any circumstances being arguably relevant, the legislature has narrowed the focus, perhaps changing a focus that could include the pain an adulterer caused — to only the economic impact of cheating.
But interestingly, Florida courts were already focusing primarily on economic factors before this amendment. To summarize broadly, courts were saying that while adultery could be relevant to alimony amounts, what mattered was whether the infidelity harmed the marriage financially and that primarily the focus was on whether the payor could pay and whether the recipient had financial need.
Maybe we are all on the same page
To understand why the legislature adopted an amendment, sometimes legislative reports made during the bill’s way through the process will shed some light. On this question, several of the house and senate reports cited a trio of Florida cases from which we can glean these points:
- It would not be fair to consider the infidelity of only one party if the other was also unfaithful.
- The court should not delve into the private details of extramarital behavior. Keeping that information out of court will lessen the harm to the parties’ children and to a paramour’s spouse. Only a broad inquiry into infidelity and whether it caused economic harm is required.
- The reasons for spousal support do not include punishment for an ex-spouse’s betrayal.
- “Devastation” of the innocent spouse is not enough for an alimony award. Economic harm is necessary instead.
- If infidelity has not caused financial harm, there is no reason for the judge to consider the behavior. Only the negative economic impact on the marital estate or on the other spouse is relevant to alimony amounts.
Florida courts were already focusing on economic impact, so changing the statute to reflect this makes sense. Of course, some of the other court holdings dealing with alimony and unfaithfulness seem to go beyond just the alimony amount question, so it will be important to understand going forward how judges interpret past holdings in light of the new amendment.