Florida Adultery Laws Explained
Florida law is very clear on the definition of adultery. Under Florida law, a spouse can be accused of adultery if he or she engages in a sexual relationship outside of the marriage. A Floria appellate court has adopted a straightforward and common sense definition of adultery as "Any sexual act of [a spouse] with another person, other than a legitimate marital act with his wife." Wetzel v. Wetzel, 474 So. 2d 1006, 1008 (Fla. 1st DCA 1985).
A few other important points regarding adultery under Florida law:
- "Legitimate marital act" doctrine: The marital act doctrine states that pre-marital cohabitation, extramarital cohabitation, and sporadic sexual infidelity are not adultery for the purposes of establishing alimony or marital misconduct, because such behavior is not secret or clandestine.
- Condonation: When one spouse forgives the other for their infidelity, it can have an impact on whether or not the adultery will be seen as grounds for divorce by the court . This can be difficult to establish if the couple reconciles after the affair but continues to deny the affair took place.
- Impact on Divorce Proceedings: Not all cases of adultery have an impact on how assets are divided during divorce proceedings and the final judgment. In some divorce cases where adultery is alleged, the court may determine that adultery has no relevance to the divorce settlement. More often than not, the burden of proof that adultery has taken place lies with the spouse making the allegation.
One of the most important things to keep in mind about adultery is that it does not always impact the outcome of child custody disputes. In Family Law, there is usually a factor weighing much heavier in the final decision than whether or not the parents cheated on each other, and that is the welfare and best interests of the child that is the focus of the dispute.
History of Adultery Laws in Florida
In Florida, the legal consequences for adultery have undergone significant changes over the years. In 1892, in the case of Lane v. Lane, 28 Fla. 376, 9 So. 33 (Fla. 1892), the Florida Supreme Court affirmed these words: "The only only other exception to the rule that adultery is no legal grounds for divorce is that adultery may be considered on issues involving alimony and the custody of children. Section 2 of the Florida Divorce Law prohibits the trial court from considering adultery as grounds for divorce or alimony except in a narrow range of cases. Since 1971, Florida law has defined adultery as "when an individual is married to a person other than the person the individual has intercourse with." Fla. Stat. § 61.071.
In 1965, the Florida Legislature stripped adultery of its judicial importance when it granted a trial court complete discretion in determining any alimony award under the laws governing dissolution of marriage. This action was reflected in Article X, Section 5 (d) of the Florida Constitution, which provides: "Provision may be made by general law for the periodic payment for the support of a wife and a child or children by the husband or wife, as may be deemed appropriate by general law." Thus, the trial court is now permitted to consider adultery and the standing of both parties as to marital funds when deciding the amount of a supported spouse’s periodic monetary prestations. See McMullen v. McMullen, 222 So. 2d 753 (Fla. 4th DCA 1969) (McMillan must satisfy alimony obligation in full, despite his voluntary decision not to live and work in the u.S.; McMillan’s right to reimbursement of any moneys previously paid to ex-wife.)
Today, adultery may still be punishable by law in Florida. Fla. Stat. § 825.102 provides in pertinent part that "(1) a person who is married commits a misdemeanor of the first degree if the person: (a) Freely and voluntarily cohabits in this state with a person to whom the person is not legally married; or (b) Has sexual intercourse with a person to whom the person is not legally married."
However, the actual enforcement of adultery laws is rare. More commonly, adultery becomes an issue in the context of family law, particularly when determining grounds for divorce or issues of alimony and child custody. Many states, including Florida, have abolished adultery as a valid grounds for divorce. Instead, today’s courts and lawmakers are focused on finding a fair and equitable solution to break-ups and separations. While adultery may not necessarily play a role in the legislation, public opinions about adultery certainly do.
Is Adultery a Criminal Offense in Florida?
For those wondering if adultery is a crime in Florida and what the penalties for adultery are, I have some answers for you. For starters, I can tell you it is not a crime. Chapter 798 of the Florida Statutes addresses bigamy, imbecility, adultery, and fornication, and there is nothing within those laws that says adultery is a crime in Florida. The statutes say who can be charged with adultery, how they can be charged, how to stop the crime of adultery, and when the crime ends. In short, the law is unenforceable and not worth the paper it is printed on. That was not always the case. It was once a crime in Florida (and in every US state) to commit adultery. Florida’s criminal adultery statute, sec. 798.01, required that either party being accused of adultery must be married. Prior to 1971 adultery was considered a first degree misdemeanor. It was punishable with a fine of more than $5,000 in 1971. Today, the penalty is a fine not to exceed $500. Even when criminal adultery was taken very seriously, the courts avoided enforcement. In 1943 the Florida Supreme Court stated, "An Act of adultery is not regarded as a criminal offense, in so far as private morals are involved." Burch v. State, 151 So. 267 (Fla. 1933). Adultery does carry with it some civil penalties, however. A spouse who believes his or her partner cheated may use that in a civil lawsuit for divorce or for defamation. The spouse would have to prove the cheating cause them to suffer damages. Today adultery is used almost exclusively as a means of making divorces more difficult. A spouse who believes their partner cheated and thus wishes to divorce them on an allegation of adultery will often hire a private investigator to catch their spouse in the act, and then leverage that evidence to coerce the spouse into submission during negotiations. The evidence is rarely used in court. If you suspect infidelity within your marriage contact a private investigator to gather evidence you can use should you decide to file for divorce, and keep private all other details about your marital life from your spouse.
Consequences of Adultery in a Divorce Case
Adultery does not carry any criminal penalties in Florida, but it can have a significant impact on divorce proceedings. This is especially true when the cheating spouse and the third party with whom he or she cheated committed adultery with the intent to interfere with the marriage. This "alienation of affections" may be actionable under civil law.
No-Fault Divorce
Florida is a no-fault divorce state, which means that most divorces proceed regardless of the reason for the split. If a spouse has committed adultery during the marriage, the other spouse may include this information in his or her petition for divorce, but adultery is not a valid legal ground for obtaining a divorce in Florida. Adultery, therefore, does not have a major impact on divorce in Florida unless the other spouse can present evidence of alienation of affections.
Alimony
The statute governing alimony, Florida Statutes §61.08, says that the judge must consider all relevant economic factors when deciding whether an award for alimony is appropriate. While adultery is not listed as a factor in the statute, it could be considered part of the relevant economic factors. Florida law specifically states that the judge is to consider the circumstances and conduct of both parties. Whether one spouse committed adultery may be considered a circumstance or conduct that led to cheating, which could have a financial impact on the other spouse.
Child Custody
In Florida, there is a strong public policy in favor of creating overnight visitation arrangements that serve the best interests of the child. If the adultery resulted in a third-party child, the court may consider whether it would be in the best interests of the other children to continue overnight visitation arrangements.
Division of Property
Florida is an equitable distribution state, so the courts will divide all property and obligations of the marriage in a way that’s fair to both parties. Although the couple’s intention in acquiring the asset is not relevant, the judge may consider the following factors: In general, adultery will not have a significant impact on the fair market value of the marital assets. However, if the luxury vehicle in the example above was financed through community assets and maintenance and repair of the car was funded with marital assets, the court might order that the spouse who has not committed adultery gets the car to compensate for the lost funds.
Although adultery may not be strictly relevant in specific terms, Florida no-fault divorce laws make it possible for the cheating spouse to have an impact on the divorce proceedings.
Establishing Adultery in Court
Florida courts require more than mere suspicion or accusation to prove infidelity in the courtroom. The legal standard for adultery, as defined by Florida’s family law courts, is to demonstrate that a spouse has engaged in a new sexual relationship. Circumstantial evidence is typically used to show this after a divorce case is filed, and the burden is on the party alleging the infidelity to present this evidence.
In a best-case scenario, the allegations of adultery are documented. Social media posts, text messages, emails, and turn-by-turn GPS data are all examples of evidence that can be used to prove adultery. An illicit affair tends to not be a single incident, but something that occurs over time, so documenting the pattern of behavior makes the case for infidelity stronger.
Many times, however, infidelity is proven via witness testimony. Witnesses include friends, family, business associates, and even private investigators. If one party suspects or is alleging wrongdoing in the form of adultery, the behaviors of the involved parties are not often very subtle. This type of behavior could be noted by friends or family who observe the interactions of the parties with each other, and those observations may be used as evidence in court.
There is no formal procedure to "prove" adultery in a Florida courtroom, as there can be with other allegations such as domestic violence. There does not need to be a "smoking gun , " for example, found to indicate that one spouse was unfaithful or even engaged in solicitation. However, any evidence presented to support a claim of infidelity should be strong enough to be admissible in court, such as by way of demonstrating that the source of the facts is reliable.
Hard evidence such as surveillance video is admissible in court, provided that it is relevant and not embarrassing or degrading to the individuals in the video. As such, many judges put a high burden on parties seeking to introduce video evidence, citing its invasive nature.
If the alleged infidelity occurred after divorce proceedings have begun, the spouse who initiated the divorce can usually simply present evidence to the court. However, if there is any reason to believe the infidelity occurred before filing for divorce, the spouse will need to prove this wrongdoing to the court to qualify for a greater alimony award, for example.
Proving adultery is much more difficult than simply providing proof that most acts of adultery occurred after the filing for divorce. If one spouse claims that the other had one or more affairs and they were not involved in any extramarital activities themselves, that claim is further weakened. Still, if the spouse is able to present evidence that proves the existence of infidelity, they may be able to gain significant alimony as a result.
Legal Guidance and Representation
Having an attorney who’s familiar with Florida adultery laws is important when dealing with the possible ramifications of an adultery-based divorce. Likewise, if you are an aggrieved spouse, you will want to hire a qualified lawyer immediately to help you navigate through the difficult process of a divorce and protect your legal interests.
Cultural Perspectives and Social Context
While adultery is not considered a crime in Florida, its presence in a divorce dispute can still be a contentious issue. The public perception of adultery is often disapproving, with traditional values dictating that such acts can be morally wrong. This cultural view may lead some individuals to feel validated in using evidence of adultery against their spouses during a divorce, presenting it as a form of retribution for what they perceive as a betrayal.
On the other hand, there are also segments of society that take a more liberal approach to adultery, viewing it as an act that may not necessarily be harmful to the institution of marriage in all situations. Some researchers have suggested that infidelity may even result from a pre-existing emotional or psychological dissatisfaction with a relationship, rather than being the sole cause of its breakdown . Accordingly, some individuals may take a more pragmatic stance during a divorce, regarding an affair as an unfortunate but ultimately irrelevant distraction in the legal matters that they must face.
The attitude of those involved in a divorce can significantly affect how the proceedings play out. For example, if one party is primarily concerned with revenge, it may prolong the process and increase costs. Alternatively, a more cooperative attitude might lead to a quicker, less expensive resolution. This demonstrates how public perception and social values can have tangible effects on private legal matters. In this way, Florida’s law in handling adultery cases may reflect societal norms of prudence and fair dealings.