Key points about dating while going through a divorce in Florida:
- Florida is a no-fault divorce state, so adultery does not determine whether a divorce is granted.
- You are still legally married during separation, so a sexual relationship can still be considered adultery.
- Florida law technically criminalizes “living in an open state of adultery,” but this is rarely enforced.
- Family courts typically only consider adultery when it has a financial impact or affects children.
- Spending money on a new partner can affect asset division through claims of wasted marital assets.
- Adultery does not directly determine child custody, but it may matter if a relationship negatively impacts the child’s well-being.
If you’re going through a separation and you or your spouse has started to date, you may be wondering whether dating during separation is considered adultery in Florida and if it can affect things like asset division or alimony.
Florida is a no-fault divorce state, which often leads people to assume that issues like cheating don’t really matter. But in reality, the situation is more nuanced.
While adultery does not determine whether a divorce is granted, it can still play a role in certain financial aspects of a case, depending on the circumstances, which we’ll explain in detail below.
If you have questions after reading this article about how your situation could affect property distribution, child custody, or alimony and child support in your divorce, reach out to the experienced Fort Lauderdale family law attorneys at Shemtov Hillstrom to schedule a free consultation.
What counts as adultery in Florida?
In Florida, adultery is generally understood as a married person engaging in a voluntary sexual relationship with someone other than their spouse. There is no detailed statutory definition used in most divorce cases, but the key factor is the existence of a sexual relationship outside the marriage.
It’s important to understand that even if you and your spouse are separated, you are still legally married until your divorce is finalized. Because of that, a sexual relationship with someone else during separation can still be considered adultery. On the other hand, simply dating—such as going out together or spending time with someone—without a sexual relationship typically would not qualify.
In practice, adultery is often proven through circumstantial evidence rather than direct proof. Courts may look at things like opportunity and behavior to determine whether a relationship crossed that line.
Can you go to jail in Florida for cheating?
Many people are surprised to hear that Florida does have a law that addresses adultery, but it is pretty narrow.
Under Florida Statute 798.01, a person commits a crime if they are “living in an open state of adultery.” This is classified as a second-degree misdemeanor in Florida, which is punishable by:
- Up to 60 days in jail
- Up to 6 months of probation
- A fine of up to $500
However, the key phrase in the law is “living in an open state of adultery.” This does not typically refer to a single instance of cheating or casually dating while separated.
Instead, it generally means an ongoing, continuous relationship where two people are openly cohabiting or presenting themselves as a couple while at least one of them is still legally married to someone else.
Even with that definition, this law is rarely enforced in modern practice. It is extremely uncommon for prosecutors to pursue charges under this statute, and most people will never face criminal consequences for adultery.
Is it cheating if you date while going through a divorce?
Not necessarily. Going on a date is not automatically considered cheating in Florida. In most cases, simply spending time with someone or getting to know a new person will not, by itself, be treated as adultery.
In divorce cases, courts are typically only concerned with cheating in specific circumstances, like when it has a financial impact on the marriage or directly affects the children.
How does cheating affect a divorce in Florida?
Generally speaking, dating during separation does not affect things like alimony or the division of assets. That’s because Florida courts look at economic factors when deciding alimony, not whether someone dated or committed adultery.
The Florida Supreme Court has said that for something like adultery to affect alimony or asset division, it has to have an economic impact, like causing a loss of family resources.
Here’s how adultery could impact a divorce in specific situations involving finances or children.
Alimony
Courts may consider adultery when deciding alimony if the relationship had a financial impact on the marriage. This usually comes up when one spouse used marital funds to support the extramarital relationship.
Common examples include paying for vacations, hotel stays, or gifts or even helping a new partner with bills. In some cases, alimony adjustments may also be warranted if a spouse spent significant money on dating apps, frequent nights out, or a second household.
If the court finds that marital money was used this way, it may increase or decrease alimony to account for that spending or factor it into the overall financial picture when deciding what is fair.
If you have concerns about the way money is being spent during your separation, or you’re worried your spending will be used against you during your divorce, discuss your situation with a Fort Lauderdale alimony attorney.
Asset division
Florida follows an equitable distribution rule, meaning the court divides assets based on fairness rather than a strict 50/50 split. Adultery becomes relevant when it involves the “dissipation” or waste of marital assets.
For example, if one spouse drained joint accounts, racked up credit card debt, transferred money to a new partner, or spent large sums on an affair, the court may compensate the other spouse.
This could mean awarding them a larger share of the remaining assets or crediting them for the amount that was improperly spent.
Child custody (time-sharing)
Adultery alone does not determine custody. Courts focus on the best interests of the child when it comes to time-sharing. However, a parent’s relationship may become relevant if it affects the child’s environment or well-being.
For example, concerns may arise if a new partner has a criminal history, substance abuse issues, or creates instability in the home. It could also matter if the relationship leads to poor judgment, such as exposing the child to inappropriate situations, disrupting their routines, or prioritizing the relationship over parenting responsibilities.
In those situations, the court may modify the time-sharing arrangement to better protect the child.
Overall, the focus is not on punishing a spouse for cheating but on addressing any real-world impact the relationship had on finances or the child’s best interests.
Where can I find the best divorce attorney in Fort Lauderdale?
Divorce can quickly become complicated, especially when financial or parenting issues are contested in high-conflict divorces. In these situations, it’s important to have an attorney who knows how to negotiate effectively but is also fully prepared to take your case to court if the other side is not being reasonable.
The Fort Lauderdale divorce attorneys at Shemtov Hillstrom bring a strong trial-focused background to every case. Tal Shemtov is a former Broward County prosecutor, and Carter Hillstrom has handled dozens of jury trials and well over 1,000 bench trials. That level of courtroom experience means your case is approached with strategy from day one, whether it resolves through negotiation or requires litigation.
If you’re facing a difficult divorce in Florida and need clear guidance on your options, reach out to Shemtov Hillstrom to schedule a free consultation to discuss the best path forward for you and your family.