When adultery plays a role in the breakdown of a marriage, it’s natural to wonder whether it will affect the outcome of the divorce—especially regarding child custody and support. In Florida, divorce is considered “no-fault,” meaning that a spouse does not have to prove wrongdoing like adultery to obtain a divorce. However, that doesn’t mean adultery is irrelevant.
While infidelity does not automatically impact decisions about parenting or finances, it may still be a factor under certain conditions. Florida courts can—and sometimes do—consider adultery when evaluating spousal support, equitable distribution, and parenting arrangements. Whether and how adultery is considered depends on the facts of the case, the evidence presented, and whether the behavior materially affected the child or the marital finances.
Understanding the role adultery can play in a divorce requires careful analysis of Florida statutes, family law precedent, and judicial discretion. A skilled Tampa divorce attorney can help you determine whether allegations of infidelity will influence your case and how to strategically address them.
Florida Is a No-Fault Divorce State
Florida law allows either spouse to file for divorce simply by stating that the marriage is “irretrievably broken.” There is no requirement to prove fault, and conduct like adultery does not need to be alleged in the petition. This no-fault approach streamlines the divorce process and avoids the need to litigate private marital details—at least in theory.
However, fault-based behavior can still become relevant in certain areas of the case, especially when it affects the financial or emotional well-being of the family.
A Tampa divorce attorney will evaluate how allegations of adultery may impact the issues in your case and whether introducing such evidence will help or hurt your legal position.
Adultery and Child Custody
Florida courts determine parenting issues based on the best interests of the child. Judges evaluate a list of statutory factors under Florida Statute §61.13 to make this determination. These include:
- The ability of each parent to meet the child’s needs
- The moral fitness of each parent
- The physical and mental health of each parent
- The willingness of each parent to foster a relationship with the other
- The stability of the home environment
- The capacity to provide consistent discipline and structure
Adultery, in and of itself, does not automatically make a parent unfit or immoral in the eyes of the court. However, if the adulterous conduct:
- Exposed the child to inappropriate behavior
- Caused emotional harm to the child
- Disrupted the family’s stability
- Involved criminal activity or substance abuse
- Demonstrated poor judgment around parenting
then the court may consider it as part of the overall custody determination.
A Tampa divorce attorney can assess whether the facts surrounding an affair rise to the level that would influence a judge’s view on parental fitness.
When Adultery May Affect Custody
Some examples of when adultery could affect custody in a Florida divorce include:
- A parent introduces the child to the new romantic partner during the divorce process, causing confusion or conflict.
- The affair occurred in the family home, and the child witnessed intimate behavior.
- The new partner has a criminal background, substance abuse issues, or poses a threat to the child’s well-being.
- The cheating parent is distracted or inattentive to the child due to the extramarital relationship.
- The affair led to erratic behavior, neglect, or parental alienation.
In these cases, the court may find that the affair has negatively impacted the child’s best interests and adjust the parenting plan accordingly.
A Tampa divorce attorney will help gather evidence, present witness testimony, and craft legal arguments if infidelity has a material effect on the child.
When Adultery Will Not Affect Custody
In contrast, adultery is unlikely to affect parenting decisions if:
- The child was not involved or exposed to the affair
- The cheating spouse continued to provide consistent care
- The new partner has no direct contact with the child
- There is no evidence of emotional harm or instability
- Both parties maintain appropriate boundaries during the divorce
In these circumstances, the court is unlikely to penalize a parent for private conduct that does not affect their ability to co-parent effectively.
A Tampa divorce attorney will argue to exclude irrelevant adultery allegations from the custody analysis when they are clearly immaterial.
Adultery and Child Support
Florida calculates child support based on the income of both parents, the number of children, and the parenting time schedule, using the statutory guidelines set forth in Florida Statute §61.30.
Because child support is calculated using a formula, there is no direct consideration of marital misconduct like adultery.
However, adultery could indirectly influence child support in limited situations:
- If the affair caused the cheating spouse to lose their job or reduce income, it may affect the calculation.
- If marital funds were spent on the affair, the court may award a disproportionate share of assets or assign debts to the offending party, indirectly affecting resources available for support.
- If the cheating parent’s new partner provides financial support, the court may consider it when analyzing actual living expenses.
Still, these are rare exceptions, and Florida courts do not usually deviate from the standard child support guidelines due to infidelity.
A Tampa divorce attorney will focus on the true financial circumstances and help clarify whether misconduct plays any role in the support calculation.
Adultery and Spousal Support (Alimony)
This is the area where adultery can most directly affect the outcome. Florida Statute §61.08, which governs alimony, specifically 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.”
This means the court can, but is not required to, consider adultery when deciding whether to award alimony and in what amount or duration.
That consideration usually comes into play when:
- Marital assets were used to fund the affair (e.g., gifts, travel, hotels, rent)
- The affair caused substantial financial harm to the innocent spouse
- The affair involved deception that affected marital finances
- The cheating spouse attempts to claim financial need while secretly cohabiting with the new partner
In these cases, the court may reduce, deny, or adjust the alimony award.
A Tampa divorce attorney will trace financial transactions, present bank and credit card records, and prove misuse of marital funds to influence alimony awards.
Proof of Adultery
To use adultery as a factor in a Florida divorce, it must be proven. The standard of proof is preponderance of the evidence, meaning more likely than not.
Direct proof is not required—circumstantial evidence can suffice, including:
- Text messages or emails
- Photos, videos, or social media posts
- Hotel receipts or travel itineraries
- Witness testimony
- Bank or credit card statements
- GPS or phone location records
A Tampa divorce attorney can issue subpoenas, conduct discovery, and obtain admissible evidence to support or refute allegations of adultery.
Adultery and Equitable Distribution
Florida follows the principle of equitable distribution, meaning marital assets and debts are divided fairly, though not necessarily equally.
Adultery can affect this division if the cheating spouse:
- Dissipated marital assets (spent money on the affair)
- Hid assets to support the affair
- Incurred debt without the other spouse’s knowledge
- Sold marital property to finance gifts or travel
In such cases, the court may award the innocent spouse a greater share of the marital estate to compensate for the misuse of funds.
A Tampa divorce attorney can identify financial misconduct, trace accounts, and present forensic evidence to support a claim of dissipation.
Adultery and Prenuptial Agreements
If the parties have a prenuptial or postnuptial agreement, the terms may address infidelity. Common clauses include:
- Alimony waivers that are voided by adultery
- Monetary penalties for cheating
- Property division formulas that change based on misconduct
Florida courts generally enforce these provisions if they are clear, not unconscionable, and voluntarily entered. However, clauses that attempt to control child custody or support based on adultery are unenforceable.
A Tampa divorce attorney will review the agreement and advise how adultery affects its terms, if at all.
When Alleging Adultery May Backfire
While it may feel justified to raise infidelity in a divorce, there are risks. Alleging adultery without sufficient evidence can:
- Undermine your credibility
- Distract from core legal issues
- Prolong litigation and increase costs
- Escalate conflict, especially in custody cases
- Result in sanctions if false claims are made
A Tampa divorce attorney will assess the value of raising adultery in your case and weigh the potential benefits and drawbacks.
When Adultery Allegations Are Strategic
There are some cases where highlighting adultery can be strategically advantageous. For example:
- To support an alimony claim where the other spouse claims financial need
- To influence custody when the affair has disrupted the child’s stability
- To justify unequal property distribution based on dissipation
- To challenge the enforceability of a prenuptial agreement
- To strengthen negotiations by raising reputational concerns
However, this strategy must be used judiciously and backed by compelling evidence.
A Tampa divorce attorney will know when to use adultery as leverage and when to keep the focus on more legally impactful issues.
FAQ
Q: Does Florida allow fault-based divorce due to adultery?
A: No. Florida is a no-fault divorce state. Adultery does not need to be alleged to get a divorce.
Q: Can adultery affect child custody in Florida?
A: Only if it affects the child’s well-being, safety, or the parent’s fitness. Otherwise, it is not a deciding factor.
Q: Will I lose custody if I had an affair?
A: Not necessarily. The court focuses on the best interests of the child, not marital conduct, unless the affair harmed the child.
Q: Can adultery reduce my alimony award?
A: Yes, especially if you spent marital funds on the affair or the conduct financially harmed your spouse.
Q: Do I have to prove the affair happened?
A: Yes. Allegations alone are not enough. You must present credible evidence.
Q: Is it worth raising adultery in my divorce?
A: That depends on how it affects finances or children. A Tampa divorce attorney can help you make that decision strategically.
Q: Can the court deny alimony because I cheated?
A: The court can consider adultery when awarding alimony, but it is not an automatic disqualification.
Q: Can I be forced to testify about my affair?
A: Yes. You may be deposed or called to testify, and you may not be able to invoke the Fifth Amendment unless criminal conduct is involved.
Q: What if my spouse’s new partner is a danger to my child?
A: The court can limit contact or require supervised visitation if the new partner poses a risk.
Q: Can I use infidelity to get more than 50% of the property?
A: Only if you can prove that your spouse used marital assets to support the affair.
While Florida law doesn’t punish spouses for infidelity in the divorce itself, the consequences of adultery can still echo through the proceedings—particularly when it affects finances or the well-being of a child. Whether you’re the betrayed spouse or accused of misconduct, the impact of adultery depends on how it intersects with the legal standards of alimony, custody, and equitable distribution. A skilled Tampa divorce attorney will evaluate the facts, build a case strategy, and determine whether adultery should be spotlighted—or left out of the courtroom altogether. When handled with precision, your divorce can remain focused on what truly matters: your children, your financial future, and your path forward.
The McKinney Law Group: Divorce Services in Tampa Designed for Peace of Mind
Divorce doesn’t have to mean uncertainty. At The McKinney Law Group, we help Tampa residents move through divorce with clarity, legal protection, and peace of mind—so you can focus on what’s next.
We assist with:
✔ Organizing your financial and legal documents
✔ Creating manageable parenting plans
✔ Exploring mediation as an alternative to court
✔ Protecting your rights with calm, professional guidance
✔ Helping you build a future based on security and independence
Call 813-428-3400 or email [email protected] to schedule your consultation today.