Marital Infidelity – How Cheating Affects Divorce in Florida

Marital Infidelity – How Cheating Affects Divorce in Florida

Marital infidelity or cheating or unfaithfulness as it is commonly referred to occurs when a partner in a marriage goes outside the marriage to engage in a relationship with someone else. This can take the form of sexual infidelity, emotional infidelity, online (cyber) infidelity, and even “sanctioned” affairs where partners may initially agree that sex or emotional intimacy is permitted with others before one party fails to comply with the rules that were agreed upon in advance. It is estimated that marital infidelity is the #1 reason for divorce, responsible for the breakdown of 20% – 40% of all marriages. But how do infidelity and cheating affect divorce in Florida? Do extramarital affairs matter with regard to grounds for seeking a divorce in the Sunshine State? What are the potential impacts on issues like child custody, property division and alimony? Here’s what Florida law says.


Does Adultery Matter in a Florida Divorce?

The answer is yes and no. Florida is considered a “no-fault” divorce state and for this reason, cheating has less of an impact on divorces than many may believe. “No-fault” means that under Florida law, no specific reason or “blame” must be proven for a court to grant a dissolution of marriage. All that must be done for a couple to divorce is to cite “irreconcilable differences” – that is, to state that the marriage is irretrievably broken. As a result, courts often do not need or desire to hear about issues such as infidelity.


This is not necessarily a bad thing. In many cases, it spares the accusing party of significant burdens associated with “fault” divorces of the past, such as having to provide proof of the affair to obtain a divorce or settlement based on adultery. This might have involved embarrassing and/or emotionally challenging testimony, bringing friends and family into court, hiring private investigators, or resorting to other less-appealing means to prove the affair.


Adultery can lead to uncontested divorces. An uncontested divorce in Florida means that the parties involved agree on the grounds for divorce and all issues such as division of property and alimony, child support, and visitation, if applicable – even responsibility for attorney fees. There is nothing left for the judge to decide. The more that you and your spouse can agree upon regarding the issues in your Florida divorce, the less your attorney has to contest in court, potentially saving you time, headaches and legal fees.


All this said none of it means that a spouse’s marital infidelity won’t come into consideration during the divorce at all. Extramarital affairs can still have bearing on issues including child custody, property division and alimony.


What Impact Does Cheating Have on Child Custody and Time-Sharing in a Florida Divorce?

Determinations on child custody (called “time-sharing” in Florida) are often the most important issues in contested divorces in Florida. A Parenting Plan is required for all time-sharing cases involving minor child(ren) and the “best interest of a child” is the guiding principle used for most custody decisions. Florida courts aim to be equitable for both parents, providing 50/50 time-sharing options that are based on multiple factors. One of these is “the moral fitness of the parents” (Florida Statutes 61.13 (3) f).


In a contested divorce, a judge will rely on the “child’s best interests” standard to determine time sharing. This standard consists of 20 separate factors that a judge considers in a contested case. One of these factors is “the moral fitness of the parents.” In this relatively narrow context, adultery could come into play. Thus, this is an area where cheating could impact a judge’s decision.


What Impact Does Cheating Have on Property Division in a Florida Divorce?

Florida’s statutes for the division of marital property fall under Title VI, Chapter 61, subsection 61.075. Similar to time-sharing, Florida courts consider numerous factors while aiming to be fair and balanced to both parties. The subsection states that all marital assets will be divided equitably amongst both spouses unless there is a justification for unequal division.


In a situation where there was marital infidelity, the judge could consider the cheating spouse’s spending to see if any of their expenditures were related to supporting the extramarital affair. If so, then the court could rule that the other spouse was eligible to receive reimbursement for such expenses. If the affair resulted in any type of devaluation of marital assets, they could consider what was equitable remuneration for any such impacts.



What Impact Does Cheating Have on Alimony in a Florida Divorce?

Historically, Florida Courts have determined alimony by deciding first, if there is a need for alimony and second, if the other party can pay it. Again, the courts consider several relevant factors under section 61.08 of Florida Dissolution of Marriage; Support; & Time-Sharing Statutes to determine the duration of alimony. These include things like the standard of living established during the marriage, length of the marriage, age and physical conditions of each party, the financial resources and marital and non-marital assets and liabilities of each party, and contributions of each party to the marriage including but not limited to services rendered in homemaking, childcare, education, and career building for the other party.


Although adultery is not considered in determining whether a dissolution of marriage should be granted, nor is it listed specifically in the current statute, the court may still consider it along with other evidence when determining the amount and duration of alimony.


Although claims of infidelity may not impact a Florida divorce in the areas of child custody, property division or alimony, if a spouse can successfully show that an extramarital affair occurred and that it should be considered in the divorce decree, it can affect decisions related to each one of those areas. In all cases of divorce and certainly, where infidelity has occurred, a spouse should always seek to use an experienced family law attorney to protect their interests. The family law attorneys at Parra Harris law provide deep expertise and experience in all areas of divorce and family law. We are bilingual lawyers who are knowledgeable, experienced, aggressive yet compassionate. Contact us at (904) 900-1617 or [email protected] for assistance.

Paola Parra Harris