Divorce can involve a chaotic jumble of emotions, leaving most people cycling through feelings of anger, hurt, sadness, and betrayal. For some during this traumatic period of time, this combination of feelings leads to the overwhelming desire for “justice”—-for what has been done to them, for the pain inflicted upon them. Simply, someone needs to “pay” for the circumstances in which they now find themselves. In these instances, individuals look to what types of legal actions they can bring against their spouse or perhaps, the “homewrecker” that is at fault by destroying their marriage and causing what is perceived as the death of their family.
Isn’t There a Law Where Spouses Cannot Sue Each Other?
Short Answer: There was. But not anymore.
Many people remember something about spouses not being able to sue each other. This was previously true in Florida under the Interspousal Immunity Doctrine. This doctrine prevented spouses from bringing civil torts (wrongful acts or infringement of a right leading to civil legal liability) against each other. The rationale behind this was the belief that lawsuits among family members would destroy relationships. In 1994, this doctrine was abolished, allowing spouses to sue each other for things like battery, negligence, fraud, and intentional infliction of emotional distress.
Can I Sue My Spouse for Cheating on Me?
Short Answer: Yes, for some things.
Cheating is a Crime. It may be difficult to believe, but cheating on your spouse is actually illegal in Florida. Pursuant to Florida Statutes, §798.01, if either party involved in the cheating is married and they “live in an open state of adultery,” both parties are guilty of a second-degree misdemeanor. Thus, your cheating spouse can be subjected to up to 60 days in jail, a monetary fine of up to $500, and up to 6 months of probation. However, before there is a deluge of calls to the police requesting arrest of the adulterous offender (and his or her cheating partner), this law is rarely put to use. In fact, adultery laws are most likely unconstitutional[1].
Suing for Contracting an STD/STI from Your Spouse. What if the other person gave your spouse an STD/STI and then your spouse gave it to you? If your spouse knew that they were infected by a sexually transmitted disease (STD)/sexually transmitted infection (STI), knew that they could transmit it to you through sex, had sex with you, and you were unaware that they were infected, your spouse could be charged criminally pursuant to Florida Statutes, §384.24. However, you could also bring legal action against the cheating spouse who gave you the STD/STI under the above circumstances in a separate civil suit for monetary damages or as a claim in a divorce.
Intentional Infliction of Emotional Distress. The emotional toll associated with cheating may lead the aggrieved spouse to sue their cheating spouse using the seemingly most fitting cause of action, intentional infliction of emotional distress. However, proving that your spouse intentionally inflicted emotional distress upon you by his or her cheating, is a challenging undertaking. You would have to prove that by cheating, your spouse (1) acted intentionally or recklessly; (2) his or her conduct was extreme and outrageous; and (3) his or her conduct caused (4) severe emotional distress. Given that some statistical data indicates that approximately 57% of divorces were caused by infidelity, proving that your spouse’s cheating was “extreme and outrageous” is unlikely. This cause of action against your spouse is likely not going to get you very far.
Can I Sue the Other Person?
Short Answer: No.
As mentioned above, technically, the other person involved in the cheating could be charged with a crime; however, for the reasons stated above regarding the unlikelihood of having your spouse charged with adultery, it would be even more unlikely that the other person would be charged. Further, in the very unfortunate event that you contracted a STD/STI from your spouse because he or she contracted it from the other person, there is no cause of action against the other person (other than perhaps your spouse bringing his or her own case against them because they gave him or her the STD/STI under those elements above).
Alienation of Affection. This cause of action is what some people immediately think of when seeking “justice” against a homewrecker. These types of lawsuits, where the aggrieved spouse sues the other person, are , in fact, called, “homewrecker lawsuits.” The angry thinking goes like this, “This shameless homewrecker did just that, wrecked my home and family, and he or she needs to pay.” In 2010, a North Carolina woman was awarded $9 million after suing the other person for destroying her 33-year marriage. However, North Carolina is one of the six states in which an aggrieved spouse can bring a lawsuit of this kind. Florida is not one of the other states[2].
Moving Forward with Collaborative Law
All the above being said does not necessarily mean that your spouse’s cheating considered in a Florida divorce. For instance, adultery can affect distribution of assets and alimony (if your spouse spent a great deal of marital money on the other person) and timesharing (one of the factors a court considers in determining the best interests of the children is the “moral fitness of the parents”). These things may be considered by a court if you choose to take the litigation route for your divorce. However, while the emotional rollercoaster of a divorce can lead to wanting a spouse or the other person to “pay” for perceived wrongs, it is more important to move beyond the need for vengeance and move forward with your future. Yes, you are allowed to feel all of the challenging feelings associated with a divorce but recognizing that a mindset focusing on retaliation will not be beneficial to your (or children’s) future, can pave the way toward more constructive and amicable resolutions. Thus, instead of focusing on making someone “pay,” moving forward with your divorce through collaborative law can shift the focus from finding “justice” to finding equitable solutions. Through the framework of collaborative law—encouraging transparency and focusing on goal and interest-oriented resolutions—families can work together toward more positive futures, keeping each person’s and the children’s emotional well-being intact. Please schedule a consultation today if you would like to discuss a family law matter.
[1] In Lawrence v. Texas, the Supreme Court ruled that criminal punishments for “consensual, adult, non-procreative sexual activity” (in this case, same-sex sexual activity) were unconstitutional, basing their ruling on the right to privacy, personal autonomy to decide on one’s relationships, and non-interference with private decisions regarding sex between consenting adults.
[2] The states other than North Carolina in which “homewrecker lawsuits” can be brought are Hawaii, Mississippi, New Mexico, South Carolina, and Utah.