You cannot sue for alienation of affection in Florida. The state abolished the claim in 1945, along with three related “heart balm” torts, so a spouse here has no civil cause of action against the person their husband or wife had an affair with.1Florida Senate. Florida Statutes 771.01 – Certain Tort Actions Abolished That door is closed. What is not closed is the effect adultery can have inside your divorce case, where it can shift both alimony and the division of marital property.
What the 1945 Statute Took Off the Table
Florida Statute 771.01 eliminated four causes of action at once:
- Alienation of affections — suing a third party for drawing your spouse’s love and companionship away from you.
- Criminal conversation — a civil lawsuit (despite the name) against someone who had sexual intercourse with your spouse.
- Seduction — historically brought by a father against a man who seduced his daughter.
- Breach of promise to marry — suing someone who called off an engagement.
All four treated romantic relationships as a form of property. The Florida legislature decided none of them belonged in court.1Florida Senate. Florida Statutes 771.01 – Certain Tort Actions Abolished Because the statute wiped out criminal conversation at the same time, you also cannot sue the affair partner for the sexual contact itself under a different label.
Can You File in Another State That Still Allows It?
Roughly six states still recognize alienation of affection claims: North Carolina, Utah, Hawaii, Illinois, Mississippi, and South Dakota. North Carolina is the most active, with multimillion-dollar jury verdicts against affair partners in recent years.
Living in Florida while the affair partner lives in one of those states does not create a path to filing there. Florida’s statute bars the claim regardless of where the third party resides, and courts generally apply the law of the state where the marriage existed. If your marriage is Florida-based, Florida law controls.
Can You Sue for Emotional Distress Instead?
People often ask whether intentional infliction of emotional distress can fill the gap. Based on the affair alone, almost certainly not. The tort requires conduct so extreme that community standards would call it outrageous and intolerable, and Florida courts generally do not treat adultery, even long-running or brazen adultery, as meeting that bar.
Where an IIED claim has a better chance is when the affair partner did something beyond the affair: deliberate harassment, humiliating messages sent to your employer, a sustained campaign to damage your reputation. The affair might sit in the background of such a case, but the claim has to rest on conduct that goes well past sleeping with a married person.
How Adultery Still Affects a Florida Divorce
Florida is a no-fault divorce state. You only need to show the marriage is “irretrievably broken,” and you do not have to prove your spouse cheated to get the divorce itself.2Florida Senate. Florida Statutes 61.052 – Dissolution of Marriage No-fault, though, does not mean adultery is legally invisible. It can move two financial outcomes.
Alimony
Florida’s alimony statute says a court “may consider the adultery of either spouse and any resulting economic impact in determining the amount of alimony, if any, to be awarded.”3The Florida Legislature. Florida Statutes 61.08 – Alimony The words “resulting economic impact” matter. A court is more likely to adjust alimony when the cheating spouse spent marital money on the affair, through expensive gifts, trips, or a second apartment, than when the affair had no direct financial footprint.
Dissipation of Marital Assets
Florida’s equitable distribution statute lists “intentional dissipation, waste, depletion, or destruction of marital assets” as a factor in dividing property. The lookback covers spending after the divorce petition was filed or within two years before filing.4The Florida Legislature. Florida Statutes 61.075 – Equitable Distribution of Marital Assets and Liabilities If your spouse drained a joint account to fund an affair, that spending can be treated as dissipation, and the court can rebalance the property split to compensate you.
You need evidence of the spending, not just evidence of the affair. Bank statements, credit card records, and receipts tying money to someone outside the marriage carry weight. Vague suspicions about missing funds will not. Courts want specific amounts tied to specific expenditures.
Infidelity Clauses in Prenups and Postnups
Florida allows couples to sign prenuptial and postnuptial agreements covering property, alimony, and other financial terms if the marriage ends. Some couples include infidelity clauses that impose a financial penalty on a cheating spouse.
Whether Florida courts will enforce such a clause is unsettled. No published Florida case has resolved it. Florida respects freedom of contract and generally enforces agreements that do not violate public policy, but the state’s no-fault framework is built to discourage blame-assigning, which gives opponents of these clauses an argument. If you want this kind of protection in your agreement, work with a family law attorney who can draft the language with that uncertainty in mind.