Florida Divorce Adultery Laws

By Joe Stone

Florida divorce laws are similar to most states' divorce laws in permitting a married couple to divorce based on the principle of "no fault." Under this principle, the fact that one spouse engaged in adulterous behavior during the marriage is irrelevant to whether the parties are entitled to a divorce. However, in some limited situations, Florida divorce laws do consider adultery a factor in determining how marital assets are divided, the amount of alimony payments, and child custody arrangements.

Division of Assets

As a general rule, Florida law requires marital property to be equitably distributed between the spouses in a divorce. If the spouses cannot agree on a division of the property through mediation, the court will divide the property in a fair and equitable manner, without favoring one spouse over the other. However, in appropriate cases, the court will consider the issue of a spouse's adultery as a basis to give the other spouse a greater share of the marital property. In order for this to apply, the spouse engaging in adulterous behavior must cause damage or loss to the marital assets, for example, by giving a significant asset like an automobile to the spouse's paramour.

Alimony

Florida divorce law specifies that an award of alimony or spousal support shall be based on a spouse's need for financial support, as well as the other spouse's ability to pay spousal support. Chapter 61 of the Florida Statutes lists 10 factors that the court should consider relevant in determining spousal support, including the duration of the marriage, the standard of living during the marriage, and the age and physical condition of the spouses. Although adultery is not listed as one of the factors, the statute does state that the court may consider adultery in determining whether to award spousal support or the amount of the award, so long as the court considers the other factors specified in the statute. However, as with a division of assets, the court is unlikely to consider adultery a factor in determining spousal support unless the spouse's adulterous behavior caused financial harm to the other spouse.

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Child Custody

A Florida divorce court must approve a parenting plan for any minor child involved in a divorce. Florida law requires the court to order both parents to share responsibility for their child, except in situations where that may be detrimental to the child. In making its determination, the court must consider several factors such as the school and community record of the child, as well as the health, both physical and mental, of each parent. Although adultery is not listed as a factor, the court is required to consider the "moral fitness of the parents." Depending on the circumstance, the court might inquire into the facts of the adulterous behavior and its effects on the child as part of considering the custody issue.

Florida Adultery Statute

As of October 2011, adultery is still a crime in Florida despite efforts in 2011 by a Florida legislator to repeal the statute. The statute dates back to the 19th century and has been described as "rarely enforced" in newspaper articles reporting on the effort to repeal it. However, it was also reported that in 2006 a woman caused her husband to be arrested for violating the statute, although the outcome of the case was not reported. Given that adultery can be considered in divorce cases regarding some issues, a violation and arrest under the criminal statute may also affect divorce proceedings.

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