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.

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.

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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.

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Does an Affair Matter in a Divorce in Tennessee?

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What Happens in a Divorce if Your Spouse Had an Affair?

The impact of adultery on divorce proceedings varies from state to state and each jurisdiction places a different weight on allegations of infidelity. In some states, allegations of infidelity during the marriage can impact alimony, property division and even custody determinations. In other states, adultery in the marriage makes little difference in the ultimate resolution of ancillary divorce matters. As adultery can be difficult to prove, many couples pursue a no-fault divorce action, which does not require either spouse to prove misconduct on the part of the other spouse.

Divorcing in California Vs. Florida

If you have a choice between filing for divorce in California or Florida, there might be big or minimal difference in the outcome, depending on what’s most important to you. The states’ laws are remarkably similar in some ways and very divergent in others. If you want to ensure you won’t come out of your marriage with less than half the property you and your spouse accumulated, California is your best bet.

Legal Actions for Adultery

The penalties for committing adultery vary widely from state to state. In California, adultery is not even a ground for divorce. However, at the time of publication, in South Carolina, adultery is a criminal offense punishable by a fine of up to $500 and a jail sentence up to a year. Depending on where you live and how you choose to legally address the transgression, the court could either not hold your spouse responsible for straying or award you a monetary settlement for his infidelity.

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