You cannot sue for adultery in Florida. The state abolished the civil lawsuits that once let a betrayed spouse take an unfaithful partner or their lover to court for money damages, so there is no standalone claim to file no matter how painful or blatant the affair. Adultery can still influence what happens inside a divorce, though, and in some situations it changes the numbers significantly.
The Lawsuits Florida Eliminated
Florida Statute 771.01 wipes out civil claims for alienation of affections, criminal conversation (the legal term for sleeping with someone’s spouse), seduction, and breach of a promise to marry.1Florida Senate. Florida Code 771.01 – Certain Tort Actions Abolished Those were the traditional tools a jilted spouse could use to sue an affair partner directly. Florida did away with them, joining most other states in treating infidelity as something the civil courts should not punish on its own.
The practical result: you cannot walk into a Florida courthouse and file a lawsuit demanding compensation from your spouse’s lover. Any legal response to the affair has to run through the divorce case itself.
One footnote worth knowing. Living in an “open state of adultery” is still technically a second-degree misdemeanor under Florida Statute 798.01, with penalties of up to 60 days in jail and a $500 fine.2Online Sunshine. Florida Statutes 798.01 – Living in Open Adultery Prosecutions under that statute are extraordinarily rare, but it occasionally surfaces in divorce litigation as context for a spouse’s conduct.
How Adultery Can Affect Alimony
Florida overhauled its alimony laws in 2023, ending permanent alimony and restructuring the available forms of support. The reformed statute kept adultery in the analysis but framed it narrowly: a court may consider “the adultery of either spouse and any resulting economic impact” when deciding alimony.3Online Sunshine. Florida Statutes 61.08 – Alimony
That phrase “any resulting economic impact” carries the weight. The court is not looking to punish infidelity as a moral matter. It wants to know whether the affair cost the marriage money. A spouse who drained joint savings on hotel rooms, gifts, and trips with an affair partner gives the judge a concrete harm to address. A discreet affair that cost the family nothing financially will get far less attention.
How Adultery Can Affect Property Division
Florida divides marital property under an equitable distribution model. The starting point is an equal split, and the court adjusts only when there is justification for something else.4Florida Senate. Florida Code 61.075 – Equitable Distribution of Marital Assets and Liabilities Adultery by itself does not shift the split. An affair that cost the couple nothing gives the court no reason to deviate.
Dissipation of marital assets is the exception. When one spouse spends significant marital funds on an extramarital relationship, Florida courts treat that spending as waste. Lavish gifts, travel, an apartment lease, credit card debt run up for the other person’s benefit all count. The innocent spouse can ask the court to account for the dissipated funds and award a larger share of what remains.
Two details make these claims tricky. You have to show the spending was intentional and wasteful, not just spending you disapproved of. And Florida imposes a two-year lookback, so you can only recover for assets wasted within two years of the claim. Bank statements, credit card records, and transaction histories matter, and they matter early.
How Adultery Can Affect Child Custody
Florida courts decide custody, called “parental responsibility” and “time-sharing” in the statute, based on the best interests of the child. The law lists over 20 factors, and one is “the moral fitness of the parents.”5Online Sunshine. Florida Statutes 61.13 – Support of Children; Parenting and Time-Sharing; Powers of Court That factor is the doorway for adultery, but the threshold for it to matter is high.
An affair that took place away from the children and did not affect caregiving usually carries little weight. Courts care about whether the conduct actually harmed or could harm the child. Judges pay attention when children are exposed to the affair partner in inappropriate circumstances, when the relationship brings instability into the home, when parental duties get neglected, or when the child is drawn into conflict tied to the infidelity.
Child support is a separate calculation. It runs off a guidelines formula tied to each parent’s income and the number of overnights each has with the child.6Florida Senate. Florida Code 61.30 – Child Support Guidelines; Retroactive Child Support Adultery has no meaningful role in that math.
Can a Prenup Punish Cheating?
Some couples try to write financial penalties for infidelity directly into a prenuptial or postnuptial agreement. Florida’s premarital agreement statute allows spouses to contract on a wide range of financial matters, including property rights and the modification or elimination of spousal support.7Online Sunshine. Florida Statutes 61.079 – Premarital Agreements The statute does not specifically address infidelity penalty clauses.
Whether a Florida court would enforce one is an open question. The agreement must be voluntary, free of fraud or coercion, and not unconscionable when signed. Because Florida still considers adultery in alimony and still has an adultery statute on the books, the state’s public policy arguably supports enforcing infidelity penalties, more so than in states that have removed fault entirely from divorce. Arguably is a long way from guaranteed. Very few Florida courts have addressed the issue squarely. Treat an infidelity clause as a negotiating tool with uncertain enforceability, not a lock.
Collecting Evidence Without Committing a Crime
If you plan to raise adultery in your divorce, how you gather proof matters as much as what you find. Florida is an all-party consent state for intercepting communications. Under Florida Statute 934.03, every person in a conversation must consent before anyone can record it.8Florida Senate. Florida Statutes 934.03 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited That is stricter than federal law, which only requires one party’s consent. Recording your spouse’s phone calls, installing spyware on their phone, or intercepting their emails without their knowledge can expose you to serious criminal liability.
Violating the wiretap statute is a third-degree felony, carrying up to five years in prison.8Florida Senate. Florida Statutes 934.03 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited Illegally obtained evidence is typically inadmissible, so the recording proving the affair can be thrown out while creating criminal exposure for whoever made it.
Safer routes exist. Financial records showing unusual spending, public social media posts, testimony from people who witnessed the affair, and a licensed private investigator who understands the legal limits are all fair game. A family law attorney can help you figure out what evidence you actually need and how to obtain it cleanly.