What is Adultery Under Florida Law
Florida Legal Definition of Adultery
Despite several substantive changes to the laws regarding alimony and other legal matters, adultery in Florida is still not a statute based issue in a divorce. It is defined by the common law. Black’s Law Dictionary defines Adultery as "the voluntary sexual intercourse of a married person with one of the other sex, either within or without the marriage." Several cases have defined Adultery in Florida. The Courts distinguish whether it is provable Adultery or circumstantial evidence of Adultery.
One case that discussed the definition of Adultery was Baker v. Baker, 38 So.2d 744 (Fla. 1949). In Baker, the Supreme Court of Florida provided a good standard for determining Adultery in Florida, as opposed to Aphorism.
This phrase means any voluntary sexual intercourse by either of two married persons with someone other than their married partners. Phillips v. Solas 180 So. 3d 631 , 636 (Fla. 1st DCA 2015).
Phillips v. Solas, 180 So.3d 631 (Fla. 1st DCA 2015) (disagreeing with the trial court’s conclusion that adultery requires proof of an act of sexual intercourse, holding that a party need only show "voluntary sexual intercourse of a married person with one of the other sex, either within or without the marriage."). Phillips, 180 So.3d at 635-36 (citing Black’s LSOR. 3d). So, even if you don’t actually have intercourse with another person, you can still be found to have committed adultery.
The new amendment to Chapter 61 did not change the definition of adultery from the common law. It has always been voluntary sexual intercourse. But the new Chapter 61 has added that some actions in the nature of adultery are now contempt of court. As such, sanctions can be imposed on the guilty party for violating the injunction even though no actual adultery can be proven.
History of Adultery Legislation
In its early years, the Florida state constitution incorporated English Common Law. This standard disallowed divorce and declared that women were considered property. The law maintained that people who committed adultery should be punished with death.
As American culture evolved, divorce became more commonplace, subsequently leading to the elimination of the sin of adultery as a reason for divorce or dissolution of marriage in the state of Florida.
After many attempts to include adultery and divorce in the state constitution, eventually, lawmakers concluded that divorce would be available regardless of the residency status or place of marriage within the state.
Once again, the constitution was changed, and the state offered "a divorce from the bonds of matrimony" to every man or woman, at any time, provided they followed due process. The change also stipulated that adultery was no longer grounds for divorce. However, in 1650, adultery would be considered a felony.
Later, in 1971, Common Law as well as Ecclesiastical law was abandoned, and adultery was only viewed as a ground for personal injury, sufficient reason for suit; the very court that governs divorce was also the court customers complained to for adultery.
Obsolete grounds for divorce are still considered before the law can formally reflect the new legal standards. Today, adultery is not only obsolete as grounds for divorce, but judges can only rule on no-fault grounds.
Adultery and its Role in Divorce Cases
Adultery, or "simple infidelity," has little effect on divorce proceedings in Florida. While these actions may be morally objectionable to some, Florida Statutes 61.08, et. al and 61.075, limit the effect adultery has on legal matters such as alimony and asset division.
Florida Statutes 61.08 In Florida, adultery is not an issue when determining alimony. Since adultery has no bearing on the amount of alimony you will receive, it is not necessary to bring up the issue in court. Florida Statutes 61.075 Adultery also has no effect on the (currently) equitable distribution of assets during divorce. Equitable distribution laws allow for any assets acquired during the marriage to be divided between both parties at the time of separation. This applies to marital property, such as a business or other income-generating asset, and to the value of the contributions made by either spouse during the marriage, such as the support of a partner while he or she completes college courses or earning a degree. Other factors courts must take into account during asset distribution include the length of the marriage, the intrinsic value of shared assets, and the economic status of either party post-separation. In short, adultery is not an important factor when a Florida couple is considering separation under equitable distribution laws. However, should one or both partners attempt to conceal assets from the other, or prove that their shared assets were, in fact, acquired before marriage – i.e. the business belonged to the husband before marriage – the court may apply a different standard for asset or alimony distribution.
Effects of Adultery on Child Custody Arrangements
In Florida, adultery is not a balancing factor in determining who gets custody of the children. In fact, it is not even admissible as proof of a parenting shortcoming or otherwise inappropriate behavior.
As recently reiterated by the Third DCA in the case of C.V.A. v. R.L.A. – an opinion filed on August 20, 2008 – the relevant standard in determining the appropriate residential arrangement of children is based upon their best interests, now codified in Florida Statute Section 61.13(2)(c)(1). This statute provides that there is no presumption for or against the father or mother regarding time-sharing with a child and the court shall ensure that the parenting plan established by the final judgment is in the best interests of the child.
Since the factors to be considered in awarding time-sharing with the children have absolutely nothing to do with whether either party has been faithful, the fact that either party has committed adultery will not, by itself, impact child custody disputes.
Legal Implications Beyond Divorce Cases
For the purposes of divorce, adultery is rarely the reason a couple splits up or the reason a parent loses custody, but there are still consequences of this conduct outside of divorce that could impact people considering adultery. Florida courts normally do not award alimony because of adultery , but they may award alimony to pay for the damages of this conduct.
"Damages" is a defined legal term that includes more than just money when it comes to adultery. The court may award the following:
Remember that each divorce case is unique and the amount awarded will be fact-specific. In short, adultery may have financial implications outside of divorce.
Adultery in the Age of Digital Communication
Under today’s "smart" phones and other devices, cheating is no longer a phone call or a clandestine meeting at the local hotel. It’s continuous texting, email exchanges, sending provocative photos on Snapchat, Facebook, Instagram and/or Twitter uploads. Texts and emails between you and your spouse may contain heated arguments about spending time online or your spouse receiving or sending of suggestive photos. You may also find instances in which your spouse promises to stop communicating with the other person. Hidden accounts or new numbers may be discovered to indicate clandestine activity. Your spouse responds with, "I’m sorry. I’ll never do it again. I promise." But how do you know? All you know is he/she is on a web or app all the time. What does this mean in and for your Florida divorce process?
Electronic evidence (email, texts, etc.) that you keep on your phone may not be admissible due to privacy and authentication issues. Your spouse could contact the phone company and have the phone company make a copy of what messages are available or to block such messages from being sent. If text messages or emails are deleted from cell phones, it may be possible to restore those messages from the phone’s phone server or Facebook’s servers. It is always a good idea to have this information preserved as quickly as possible in case the other party deletes some of these communications. Such applications as Text Fairy can help even if your spouse deleted their texts.
Seeking Professional Legal Guidance
Adultery laws in Florida can be complicated and may have serious implications for issues such as property division, child support, and adultery defense within the context of pre-existing legal frameworks such as divorce . While this article is meant to provide a general overview, every situation is different. Thus, those facing adultery-related legal issues in Florida should consider consulting a qualified legal professional to explore their options.