Discovering that your spouse has been unfaithful can be devastating, and it often plays a significant role in the decision to end a marriage. One of the first questions many people have is whether cheating will affect the outcome of their divorce.
In California, the answer is generally no, but there are important exceptions.
California is a no-fault divorce state, which means that a spouse generally does not need to prove adultery, misconduct, or wrongdoing to obtain a divorce. Likewise, the court typically will not punish a spouse financially simply because he or she had an affair.
However, conduct surrounding an affair can sometimes affect issues such as property division, child custody, or even attorney’s fees. Understanding the distinction can help you focus on the facts that actually matter in your divorce.
California Is a No-Fault Divorce State
Under California law, a marriage may be dissolved based on “irreconcilable differences” that have caused the irremediable breakdown of the marriage. Neither spouse needs to prove that the other caused the marriage to fail.
This means that adultery itself is generally not something the family court is asked to decide.
For example, if one spouse had an affair and the other spouse was completely faithful throughout the marriage, the faithful spouse does not automatically receive a larger share of the marital estate. The court is generally concerned with applying California law to divide property and resolve support, custody, and other issues as opposed to determining who was responsible for the end of the marriage.
Does Cheating Affect Property Division?
Usually, no, not by itself. California is a community property state. Generally, assets and debts acquired during the marriage are characterized and divided according to California community property law. A spouse does not lose his or her interest in community property merely because that spouse had an affair.
However, the financial conduct associated with an affair can matter.
For example, if a spouse secretly spends significant community funds on a romantic partner during the marriage. This could include expensive trips, hotel rooms, gifts, jewelry, rent, or other expenditures benefiting the third party. Those expenditures may raise legitimate financial issues during the divorce. Depending on the circumstances, the other spouse may seek an accounting or reimbursement based on the misuse of community assets.
So, while the affair itself may not affect property division, what happened to marital money during the affair might be relevant.
Does Cheating Affect Spousal Support?
Many clients are surprised to learn that adultery generally does not eliminate a spouse’s ability to receive spousal support in California.
California courts consider statutory factors when determining long-term spousal support, including the parties’ earning capacities, needs, assets and obligations, duration of the marriage, age and health, and other circumstances identified in Family Code section 4320.
Whether one spouse cheated is not among those factors.
As a result, a higher-earning spouse ordinarily cannot avoid paying support simply by proving that the other spouse was unfaithful. Similarly, a spouse generally cannot obtain additional support as compensation for the emotional harm caused by an affair.
Can an Affair Affect Child Custody?
Again, an affair by itself generally does not determine custody.
California courts make custody decisions based on the best interests of the children. The focus is on the children’s health, safety, and welfare as opposed to punishing a parent for marital misconduct.
However, the circumstances surrounding a new relationship may become relevant if they affect the children.
For example, concerns may arise if a parent exposes the children to unsafe individuals, repeatedly leaves the children without appropriate supervision to pursue a relationship, involves the children in adult conflict, or engages in conduct that negatively affects the children’s stability or well-being.
The relevant question is not simply, “Did this parent cheat?” Instead, the question is whether the parent’s conduct has an actual bearing on the children’s best interests.
Should I Try to Prove My Spouse Is Cheating?
Not necessarily. Divorce litigation can become expensive very quickly when parties focus on proving conduct that has little or no legal relevance. Emails, text messages, social media posts, credit card statements, and other evidence may establish that an affair occurred, but proving the affair may accomplish very little if it does not relate to an issue the court must decide.
Before spending substantial time and attorney’s fees investigating infidelity, it is important to ask: “What legal issue does this evidence prove?
If the evidence shows that community money was secretly spent, that assets were concealed, or that conduct is negatively affecting the children, it may be important. If its only purpose is to establish that a spouse was unfaithful, it may have limited value in a California divorce proceeding.
What If My Spouse Is Living With a New Partner?
This can present a different issue.
While adultery itself generally does not affect spousal support, cohabitation may. Under California Family Code section 4323, there is generally a rebuttable presumption of decreased need for spousal support when the supported party is cohabiting with a nonmarital partner.
That does not mean support automatically terminates when someone moves in with a new partner. However, cohabitation can become relevant to whether the supported spouse continues to have the same financial need.
Focus on What Matters in Your Divorce
Infidelity can understandably make divorce more emotional and more difficult, but the issues that feel most important personally are not always the issues that matter most legally.
In a California divorce, the better approach is usually to focus on the facts that affect the court’s decisions: the parties’ finances, characterization and division of property, income available for support, and (when children are involved) their health, safety, stability, and best interests.
The Soleymani Law Firm, APC can help you distinguish between conduct that is understandably upsetting and conduct that may actually affect the legal outcome of your case.
This article is for general informational purposes only and does not constitute legal advice. Every situation is different, and individuals considering a prenuptial agreement should consult with a qualified California family law attorney regarding their specific circumstances.