Not all states treat adultery alike

The law varies depending on where you are. Understand the intricacies of divorce law and the impact on your settlement with the help of your divorce attorney. In some states like California, adultery has little or no bearing at all on the divorce. If you live in a no-fault state like California, then you should be able to proceed as normal and no proof of adultery will be demanded.

How adultery impacts Spousal Support or Alimony

If you are the one accused of adultery in a no-fault divorce state like California, there is generally no impact on the ability to seek spousal support. However, if cohabitation with that person occurs, it can affect the amount and/or ability to obtain spousal support.

Division of Financial Assets in a divorce involving Adultery

How the financial assets are divided and the terms of the settlement are in general, not influenced by whether or not one partner or both have committed adultery. The only instance where it could come into play is if the family’s finances and assets were impacted or utilized for supporting the adulterous relationship. In case the family wealth was eroded to support this relationship, the betrayed spouse will make a bid for some form of compensation.

Special circumstances

In case you contracted an STD and passed it on to your spouse, you may find yourself vulnerable to personal injury action lawsuits. It is therefore, best to come to an agreement within the purview of the divorce proceedings and settlement and prevent things from getting out of hand.

Ultimately though, the divorce settlement will be most influenced by your own emotions, guilty and feelings towards your soon to be ex spouse. If you are feeling bad about what you did, you may agree to give in a little more and let your spouse get a better deal.

Gerald A. Maggio is a trained divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.

(1) It is unlawful for any person who has chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute salpingitis, or syphilis, when such person knows he or she is infected with one or more of these diseases and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

(2) It is unlawful for any person who has human immunodeficiency virus (HIV) infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

Therefore, knowledge is an important element of this crime.  That means a prosecutor must prove the person charged with this crime knew they had the sexually transmitted disease (STD) and knew the disease could be passed to a sexual partner.  It is also a defense to the crime if the infected person informs their sexual partner prior to engaging in sex that they are infected.

Who has the burden to prove the defense?  This is an important question for anyone charged with this crime or other crimes that have defenses such as Carrying a Concealed Weapon or Firearm in Florida.  This is also why it is important you retain an experienced criminal defense lawyer who knows how to interpret statutes to insure you get every defense possible if you are charged with a crime.  In the STD transmitting criminal case, the prosecutor bears the burden of proving that the alleged victim was not informed that the Defendant was infected with an STD.  That is because the defense is contained in the actual, enacting statute.  This may be simple to do by just having the alleged victim testify that they were never informed about the STD.  However, if the prosecutor does not present any evidence as to this fact, the case would be dismissed at trial.

In the Carrying a Concealed Firearm case, it is an affirmative defense to prove the person charged with the crime had a license to carry permit.  That means the Defendant must present evidence in order to receive the benefit of this defense.  That is because the affirmative defense to the crime is contained in a clause subsequent to the Carrying Concealed Weapon statute and is a “subsequent clause.”  Thus, the prosecutor does not have to prove the absence of a license.  State v. Robarge, 450 So.2d 855 (Fla. 1984).

What are the penalties for unlawfully transmitting HIV or a sexual disease?  It depends.  The penalties are contained in Florida statute 384.34 “Penalties”.

• Any person who violates the provisions of 384.24(1) commits a misdemeanor of the first degree, punishable by up to a year in jail.
• Any person who violates the provisions of the department’s rules pertaining to sexually transmissible diseases may be punished by a fine not to exceed $500 for each violation. Any penalties enforced under this subsection shall be in addition to other penalties provided by this chapter. 
• Any person who violates 384.24(2) commits a felony of the third degree, punishable by up to 5 years in Florida State Prison (FSP).  
• Any person who commits multiple violations of s. 384.24(2) commits a felony of the first degree, punishable by a term of imprisonment not exceeding 30 years.

In the officer’s case, he was screened for testing when he was first hired as a police officer.  That would allegedly give him knowledge of the STD virus.  It is mandatory that all police officers are screened for STD’s as part of their pre-employment screening before being hired on the police force.  Because there were more than one alleged victim, he is being charged with two counts of criminal transmission of HIV as a first-degree felony and faces 30 years in prison for each criminal count.  There was allegedly one more victim, but the statute of limitations ran out on that act.  A potential defense to be argued will be whether either or both counts could be charged as 1st degree felonies.  The legal defense or question being is a person charged under this crime required to be convicted of at least one offense before they can be charged with a 1st degree felony?  The defense will argue he was never convicted of this criminal charge before, so there have been no criminal violations necessary to aggravate the charge to a 1st degree felony.  This could mean the difference between 60 years in prison maximum he faces or 10 years in Florida State Prison.

Sex crimes or sexually related crimes are very serious under Florida law.  If you have been arrested for lewd battery, transmission of an STD, possession of child pornography retain an experienced sexual crimes defense attorney to fight for you in court.

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Thomas C. Grajek  863-688-4606