Adultery and No Fault Divorce in Florida

Adultery and No fault Divorce in Florida

By Diana Knowles Dunlop, Florida Family Law Attorney

Prior to Florida becoming a "no fault" state in the mid-1970's, one spouse had to allege that the other spouse had done something wrong that had caused the marriage to become broken. If the Wife was an adulteress when Florida was a "fault" state, her adultery in and of itself was a legal reason for the judge to use to deny the Wife a request for alimony. See Pacheco v. Pacheco, Supreme Court of Florida, April 7, 1971, where the Supreme Court rules as constitutional the old alimony statute which stated in relevant part: " . . . no alimony shall be awarded to an adulterous wife." The old alimony statute also prohibited any alimony being awarded to a husband except in cases where the husband was insane. Presumably, under the old alimony statute, a particularly strong legal argument to award alimony to a Husband would have been when the Husband was found to have been made insane by the adulterous actions of his Wife.

Today, the current Florida alimony statute reflects the many changes made to the old alimony statute. The language as to "no alimony shall be awarded to an adulterous wife" has been removed. And, now, alimony can be awarded to a Husband, whether sane or insane. However, Fla.Stat. s. 61.08 did retain adultery as a factor for the judge to consider when deciding (1) whether or not to award some type of alimony, (2) what amount of alimony to order, and (3) for how long to order the alimony to be paid. In relevant part, Chapter 61.08 (1) states: "The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded."

The Effect of Adultery on a Dissolution Case, Today:

The difference in the effect of adultery on current dissolutions of marriage in Florida from what the effect of used to be is that, today, the judges focus on the economic effect caused by the adultery. If the adulterer spent marital funds on his or her paramour – bought gifts for him/her, took him/her on trips, paid living expenses for him/her, those payments depleted funds that the cheater should have used to increase the marital assets. If the marital assets are split 50/50, the innocent spouse has an equitable argument that he/she be paid one-half of the money the cheating spouse spent on girlfriend/boyfriend.

Phone 407 628-4300 for a free consultation as to how alimony and no fault divorce laws in Florida affect your specific situation.