One of the most common issues in divorce is infidelity, typically referred to as “adultery.” We are often asked many questions about adultery. This is because many clients believe that adultery is a crime. That is not the case pursuant to Florida law; however, although it is not listed as an offense under the UCMJ, a military member can be punished for adultery or similar punishable conduct under Article 134. We recommend the advice of a military criminal lawyer for more information regarding adultery and the consequences for military members. In any event, from a Florida Family Law perspective, adultery is not a crime in Florida but clients who have an unfaithful spouse do feel like a victim.
Further, Florida is technically a “no fault” divorce state. This means the Court does not have to find fault with either spouse in order to grant a divorce. We have two grounds or legal reasons to grant a divorce, i.e., irreconcilable differences and incompetence of a spouse.
Notwithstanding the broad “no fault” divorce policy in Florida, infidelity can be relevant in a divorce case. Specifically, in the division of marital property, a court can consider infidelity. For example, if a spouse has depleted marital assets in furtherance of an extramarital affair, then the other spouse can demand an accounting of the dissipated assets/funds and he or she can be repaid for one-half of the value of the lost assets/funds. Likewise it can be relevant in custody disputes. If one spouse exposes a child or children to a paramour before a divorce is final, a trial judge will be generally displeased about this decision as there is substantial empirical evidence that children become confused and have detrimental responses to such exposure. This act could actually affect a court’s decision on custody of a child or children.
Lastly, infidelity/adultery is relevant in alimony disputes. The alimony statute provides that, “ . . . [T]he court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded . . .”
Thus, while adultery is not a crime on the state level, it is an act that can result in serious adverse consequences in a divorce.