Divorces are frequently highly emotional situations. This is likely to be exacerbated when one spouse’s extramarital behavior is the trigger for proceedings. In these circumstances, it’s common for people to use the terms “infidelity” and “adultery” interchangeably. However, from the perspective of Florida family law, these are quite distinct terms that may impact certain elements of the divorce process.
Knowledge can be a powerful tool when you’re navigating the divorce process. So, we’re going to take a closer look at these terms and—more importantly—how each might feature in Florida divorces.
What is Infidelity?
Infidelity is a relatively broad term. Strictly speaking, it’s not legal terminology, but is usually employed to describe a betrayal of trust within a marriage or other form of committed relationship.
Definitionally, there are various forms that infidelity can take, these include:
- Physical – The typical definition of an affair with a party outside of the marriage, involving various forms of intimate physical contact. This aspect of the definition is usually where the overlap between infidelity and adultery lie.
- Emotional – This is used to describe a non-physical romantic attachment to another party outside of the marriage, usually to the extent that it affects the marital relationship.
- Digital – An increasingly common form, digital infidelity describes extramarital behavior or relationships that exist purely in online environments, such as through text, apps, or social media.
There’s no doubt that each of these forms can be devastating. However, while claims of infidelity in general may be utilized to provide context in divorce proceedings, not all forms that fall under the definition typically hold legal weight in Florida courts.
What is Adultery?
Adultery plays a specific legal role in Florida law. Definitionally, it describes the act of voluntary sexual intercourse between a married person and someone who is not their spouse. While there is certainly an overlap here in the terminology of physical infidelity, adultery is considered legally distinct.
The reason for this is that adultery is still considered a criminal offense. Under Florida Statute §798.01:
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.
It is rare for people to be prosecuted under this law today. Nevertheless, adultery remains a more narrow legal definition than the broader general description of infidelity.
Infidelity vs. Adultery
| Feature | Infidelity | Adultery |
|---|---|---|
| Legal status | No specific legal weight | On Florida statute as criminal offense |
| Potential impact on divorce proceedings | Little beyond providing context | May be applied to specific aspects in a limited capacity |
| Definition | Broad, encompassing physical, emotional, and digital forms | Specific, relating to sexual intercourse with someone who is not their spouse |
How Does Adultery Impact Divorce Grounds?
Simply put, while adultery has its own legal distinction in Florida, it doesn’t specifically impact divorce grounds. This is because Florida is a no-fault divorce state. As a result, couples only need to confirm that one of two situations has led to the requirement for a divorce.
These are:
- Irretrievable breakdown of the marriage.
- Declaration of mental incapacity of one of the spouses for a period of at least 3 years.
In the case of adultery, it is usual for the irretrievable breakdown of the marriage to be defined as the reason for proceedings.
Impact on Alimony and Division
While adultery isn’t required to be officially noted as a reason for the divorce, it—and, in some cases, the broader terminology of infidelity—can impact other areas of divorce-related proceedings. Among the common aspects it might influence are the awarding of alimony and the division of marital assets.
Alimony
In some instances, Florida courts may take adultery into account if the offending spouse spent marital funds in pursuing the affair. If this took a relatively substantial form, the courts may decide to award or adjust calculations for a more favorable alimony award for a specific period of time to account for the financial misconduct.
Asset division
Florida is an equitable distribution state, with courts always seeking to divide marital assets fairly, if not always directly down the middle. Adultery doesn’t change this, but when marital resources were used in an affair, the court may adjust division to account for the financial disparity.
It’s also worth noting that both of these instances may be affected by the presence of a prenuptial agreement. Such agreements may have clauses that explicitly outline that adultery or specifically defined forms of infidelity by one of the parties results in financial consequences during a divorce. However, it’s vital to ensure prenups are legally sound, fair, and not agreed to under duress.
While adultery may be considered in the division of marital assets, it does not affect the retention of non-marital assets.
Child Custody
In the majority of cases, neither adultery nor infidelity will affect parental rights or custody decisions. These aspects are quite robustly enshrined in Florida law and any decisions will be made expressly with consideration for the best interests of the child, rather than the impact of a spouse’s choices on the parents.
That said, courts may consider adultery as a factor if it has had a negative impact on the child’s welfare. For instance, if the child has been introduced to an affair partner under inappropriate circumstances.
This is nonetheless a quite complex situation and courts will carefully look at all influencing factors.
Proving Adultery in Court
Unless there is an admission by the other party, it is difficult to utilize adultery or infidelity to affect alimony, asset division, or custody unless it can be proven. Certainly, an experienced Florida family law attorney can provide guidance here. However, some of the materials that can support claims here include:
- Financial records
- Witness testimony
- Communication records
- Private investigator reports
It’s also worth noting that adultery—unless pursued openly—can be quite challenging to prove due to its specific definitions. By comparison, the more broad terminology of infidelity is more likely to present opportunities for evidence materials. Again, an attorney is a vital collaborator in arranging, organizing, and presenting such cases to the court.
Final Word: Definitions matter
Although it’s common for people to use the terms “infidelity” and “adultery” interchangeably, the Florida court system views them as separate things. Neither affects the grounds for divorce, but they can influence elements such as alimony, division of assets, and custody—particularly adultery, which carries more legal weight.
No matter what side of the situation you’re on, it’s important to seek experienced counsel to help you navigate your divorce effectively. Our Florida family law attorneys will help you to better understand how your specific circumstances are likely to affect outcomes and provide you with robust and impactful representation throughout your journey.
