No Fault Divorce: Does Adultery Matter in Florida?

Adultery may affect division of property in a divorce, child custody, and more.

By , Attorney · Cooley Law School

Florida is a "no-fault" divorce state, which means that either party may seek a divorce without proving any reason for it other than the spouses don't want to be married anymore. The spouse seeking a divorce simply needs to state that the marriage is "irretrievably broken" or that one spouse is mentally incapacitated (and has been for at least 3 years before filing for divorce.) (Fla. Stat. Ann. § 61.052.) No-fault divorce law relieves the court of the complicated duty of deciding who is at fault for the divorce, and it spares the spouses from having to talk about painful personal issues in court.

However, if one spouse committed adultery, it might affect other elements of the divorce. Continue reading to learn more about how adultery might affect a divorce in Florida.

Defining and Proving Adultery

Although not specifically defined in Florida law, courts generally define adultery as voluntary sexual intercourse between a married person and someone other than that person's spouse. Adultery is a crime in Florida, so the state could prosecute you for the misdemeanor if your spouse catches and reports you. (Fla. Stat. Ann. § 798.01.) It's rare for the state to prosecute the crime of adultery, but in divorce proceedings, your affair could come into play.

When it comes to divorce, if your spouse's adultery is relevant to one of the issues in your case, simply alleging that your spouse was unfaithful isn't going to be enough. Instead, you will need to provide the court with proof of the alleged affair.

Effect of Adultery on Child Custody

When it comes to deciding how to award child custody and visitation in a divorce, judges must consider what's in the children's best interest. Although the law doesn't directly list "adultery" in its list of factors for judges to evaluate, it does require the judge to consider each parent's moral fitness. (Fla. Stat. Ann. § 61.13.)

So, suppose one parent can prove that the other parent's adultery had or is reasonably likely to have an adverse impact on the child. In that case, the judge might limit that parent's custody or visitation. "Moral fitness" is only one of several factors that a judge will consider when creating a parenting plan in a divorce. Other factors include:

  • a child's reasonable preference
  • each parent's mental and physical health
  • the child's home, school, and community record
  • each parent's ability to provide for the child, and
  • many more.

Does Adultery Affect Property Division?

Adultery may also affect how the court divides a couple's marital property and debts. Florida is an equitable distribution state, which means the law presumes that both spouses equally contributed to the assets and debts. As a result, the judge will divide marital property (and debts) equitably (fairly) between the spouses by evaluating several factors required by Florida statutes. For example, the court will consider:

  • each spouse's contribution to the marriage and the care of the children
  • each spouse's economic circumstances
  • the length of the marriage
  • whether either spouse interrupted a career or educational opportunity for the marriage
  • whether either spouse contributed to the other's career or educational advancements during the marriage
  • whether either spouse wishes to retain a business or other professional asset as separate property
  • each spouse's contribution to the acquisition, enhancement, and production of income or the improvement of or the incurring of liabilities to both marital and non-marital assets
  • whether a spouse wishes to maintain the marital home for the minor children, and
  • any other factors the judge deems necessary to create an equitable distribution.

Additionally, the court will evaluate whether either spouse intentionally wasted any marital assets (money). If the court finds a spouse guilty of wasting assets, the judge may overcome the presumption of equity to create a property distribution award the judge feels is fair based on the family's individual circumstances.

For example, if one spouse used marital funds on an adulterous affair--to take trips, rent an apartment or vehicle, or on dinners for a lover--the court could consider all evidence of these actions and reduce the adulterer's share of the marital property in order to reimburse the "innocent" spouse. (Fla. Stat. Ann. § 61.075.)

Effect of Adultery on Alimony

Alimony is a court-ordered payment from one spouse to the other during the pendency of the divorce and sometimes, for a period after the divorce. The purpose of alimony is to ensure that both spouses' finances are similarly situated.

In Florida, the court will award alimony to a spouse if that spouse demonstrates a need for financial support which the other spouse can pay. Additionally, the court will evaluate a specific set of factors to determine the appropriate type, frequency, duration, and amount of support.

In addition to several other factors, Florida laws allow judges to consider whether either spouse committed adultery during the marriage before awarding alimony. Remember, if you're alleging that your spouse was unfaithful, you'll need to prove it to the court before the judge will consider it in the final alimony award. Judges will typically only increase a wronged spouse's alimony if the other spouse's misconduct increased the needy spouse's financial needs. (Fla. Stat. Ann. § 61.08.)

(See Florida Divorce and Family Law to find more information about Child Custody, Property Division, and Alimony.)