Marital Misconduct & Florida Divorce Law

By Jim Thomas

Marital misconduct is a tricky issue in a no-fault divorce state such as Florida. In fact, a Florida judge might not even permit evidence of infidelity to be introduced during the divorce process. However, in certain circumstances, marital misconduct becomes a relevant factor in determining a division of the marital assets or who should be granted custody of the children.

No-Fault Divorce

A divorce can be granted in a no-fault state if one or both spouses state there is an "irretrievable breakdown" of the marriage. The court doesn't need to determine if one spouse was unfaithful or otherwise responsible for the breakdown. Therefore, it is seldom an issue in terms of whether a court will grant the divorce.

Marital Misconduct

Marital misconduct may come into play when a court wrestles with the terms of a divorce. In addition to adultery, marital misconduct can encompass domestic violence, cruel and abusive behavior, and alcohol or drug addiction. Such misconduct is weighed by the court in determining issues such as child custody, division of assets and whether to grant alimony.

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Economic Impact

If adultery or other types of marital misconduct create financial problems for the other spouse, the court will allow evidence to show the impact of the misconduct. For example, if a husband spends lavishly on his girlfriend, the wife may be compensated for the draining of funds from marital property. A cheating spouse may also transfer assets to other family members or business partners to hide the amount of marital assets. In such situations, a court may find that the innocent spouse deserves to be recompensed for the ex-spouse's improper conduct.


Divorce courts in Florida can order the parties to try to reconcile if one spouse denies the marriage is irretrievably broken or if they have young children. The case can be delayed for up to three months, with the judge ordering the parties to attempt mediation or counseling during that period. In such situations, even in a no-fault divorce state, the court considers the interests of the children to be paramount.

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