Adultery is a misdemeanor in Florida. According to statute 798.01, it’s a second-degree misdemeanor to be Living in Open Adultery:
Living in open adultery.—Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.
Having said that, the law is rarely, if ever, prosecuted. However, technically, it’s still on the books as a crime. I’m not going to debate the relative merits of that arcane law but I point it out in relation to the issue at hand-if adultery is a crime, why doesn’t it impact a divorce case in Florida. Well, it actually can. Yes, Florida is a no-fault divorce state meaning that even if one of the spouses commits adultery, that spouse can seek a divorce. Yet, adultery can affect certain aspects of a divorce’s outcome, for example, the division of the marital estate. If the adulterous spouse is shown to have spent a couple’s money on the adulterous relationship, the court may be persuaded to use this information in allocating marital assets in the divorce. Decisions concerning parenting time, visitation schedules, and who will be the primary residential parent. Although adultery is not one of the enumerated factors a court is to take into consideration when determining what is in the child’s best interests, the “moral fitness of the parents” is one such factor. Depending upon the precise circumstances surrounding the adulterous relationship, a court may find that such a relationship reflects negatively on the “moral fitness” of the adulterous spouse. This, in turn, can result in the court awarding less parenting time to the adulterous spouse. In some severe cases, an adulterous relationship of one of the parties can be found to be so harmful to the best interests of the child or can reflect so negatively on the morals of the adulterous party (especially if extreme dishonesty was involved and/or the adulterous party neglected his or her duties to his or her family) that the adulterous party’s parenting time is limited or eliminated.
There is another issue to consider in divorce proceedings. Filing for divorce doesn’t equate to being divorced. Any sexual relationship a party engages in during the pendency of the divorce is (technically) an adulterous relationship. Divorcing parties should be careful about using marital assets to support such a relationship during the pendency of the divorce.
While Florida is a no-fault divorce state, that doesn’t mean adultery can’t negatively impact a divorce proceeding for the adulterous party. Adultery may impact the court’s decision on the marital estate, entering child custody orders, and determining what amount of alimony is appropriate. If you’re considering a divorce, it’s important to talk to an experienced Florida divorce lawyer sooner rather than later. If you’re involved in a relationship outside of your marriage, you need to be open with your lawyer about it.