Adultery can certainly be a factor in a divorce. However, adultery is only relevant for limited purposes. Florida is sometimes referred to as a no-fault divorce state. This only means that proving fault is not required to obtain a divorce. There are only two reasons that are acceptable in Florida to obtain a divorce. The most common reason is that the parties have irreconcilable differences. The other is that a spouse is mentally incompetent.
A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony. A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid. F.S. 61.13(3)(f).
Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues. The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination. F.S. 61.13(3)(f). If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children. In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration. Packard v. Packard, 697 So.2d 1292 (1st DCA 1997). The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child. Dinkel v. Dinkel, 322 So.2d (Fla. 1975).