Florida Divorce Laws on Infidelity

by Beverly Bird

    No-fault divorce states, such as Florida, grant divorces on the premise that sometimes marriages just don’t work out. The spouse who wants to end the marriage doesn’t have to prove that her partner committed any wrongdoing. She only has to tell the court that the marriage can't be saved. However, if her spouse was unfaithful, and if she can prove his infidelity, Florida law allows judges to take it into consideration when deciding certain issues.

    Grounds for Divorce

    Officially, Florida has only two divorce grounds: that the marriage is “irretrievably broken” or that your spouse is mentally incapacitated. When you file a divorce petition, you must tell the court in the petition which reason has caused you to end your marriage. If your spouse was unfaithful, irretrievable breakdown is the ground that applies. You would not state your allegations of infidelity in your petition. However, you can tell the court whether you want alimony or custody and how you want your marital property divided. When a judge ultimately decides these issues, he can take your spouse’s adultery into consideration at that time.

    Impact on Property Division

    Florida judges can’t award one spouse a disproportionate or larger share of marital property because the other spouse cheated. The judge’s decision can’t be punitive against the spouse who strayed. However, if your spouse used marital money on his paramour, Florida allows a judge to include this factor in his decision regarding which spouse receives what property. Florida is an equitable distribution state, meaning that the court doesn’t necessarily split property evenly between spouses but rather in a way that seems fair. This gives a judge a bit of discretion. If your spouse drained marital funds by spending money on his affair, a judge might award you more of the marital property to compensate you for that.

    Custody Issues

    Judges generally will not refuse a parent visitation because he committed adultery during the marriage. It might affect custody, however. Like most states, Florida courts consider “moral fitness” when deciding who the children live with the majority of the time. If you can prove that your spouse’s affair hurt your children, Florida allows judges to weigh this when deciding custody disputes.

    Alimony

    Infidelity can also affect a judge’s decision regarding alimony. Section 61.08 of the Florida Statutes states specifically that the court can consider infidelity when deciding the amount of alimony ordered in a divorce. Like property division, this statute isn’t punitive. Generally, a judge will order an increased amount of alimony to the non-straying spouse if her partner’s infidelity resulted in some circumstance that that affects her financially.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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