What Happens When an Affair Produces a Child?
Infidelity is hard for any spouse or partner to understand or accept. Being unfaithful frequently leads to the end of the relationship and filing for divorce. While infidelity does not have a direct influence on the outcome of divorce, and only has an indirect consequence in certain circumstances if a court is left to decide outstanding issues, it can become the more relevant if the couple decides to resolve issues privately through settlement negotiations. Affairs are damaging enough on their own, but when they produce a child, the harm is compounded. How the birth of a child plays out in a divorce, as well as any determination of child custody or financial obligations, will depend largely upon whether the mother was married at the time of the birth and the biological father’s involvement with the child after birth. Thus, there are two aspects to this situation – does the affair matter in the resolution of the divorce, and who is legally responsible for the child, the husband or the biological father. An exploration of this complex issue will follow below.
Effect on the Divorce
As noted above, infidelity is not directly relevant in a Florida divorce. Florida is a no-fault divorce State, so the specific reason the marriage did not work does not need to be disclosed to the court, and judges actually decline to review the behavior that damaged the relationship. However, infidelity can have an indirect impact on property division awards if it can be shown the affair caused one spouse to dissipate or waste marital assets to support the extramarital affair. If so, the innocent spouse may receive a higher percentage of the couple’s assets as compensation for the other’s unauthorized use of the property. In rarer circumstances, an affair could affect the unfaithful spouse’s child custody rights if the relationship continues, and it is shown to pose harm to the child. In this situation, the parent may have to restrict exposing the child to the new romantic partner.
Who Is the Legal Parent?
Turning to the question of who is responsible for the child if the mother gave birth while married to another man, the answer is far from easy. Under Florida law, the husband is presumed to the be the child’s father, and the biological father will have no rights to access the child unless the husband’s parental rights are terminated. Courts do not want to leave a child fatherless, and will not terminate rights unless it is in the best interests of the child. Thus, in situations where a child is the product of an affair, the husband will not be released from his/her parental obligations unless the biological father is ready to take on this role. Demonstrating this intent requires the biological father to file an affidavit of paternity in the divorce case and state his intention to assume all parenting rights and responsibilities. Conversely, the husband will need to file an affidavit of non-paternity to show he is giving up his rights. If the biological father has no interest in caring for the child, or the husband does not want to relinquish his rights, the outcome is far from certain and primarily fact-specific. An experienced family law attorney should be consulted about the best way to proceed in these circumstances.
Get Legal Advice
Affairs produce a number of consequences once discovered, and the resolution of a divorce is just one of the areas where this influence is seen. If you have questions about the implications of an affair on your divorce, talk to the attorneys at All Family Law Group, P.A. about the application of the law to your case. Our years of experience can help achieve the best possible result. Contact the Tampa divorce and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-672-1900 for a consultation at no charge or email us.
by Lynette Silon-Laguna Google+