California is a no-fault state when it comes to divorce. This means that neither party needs to establish specific grounds for divorce or show the other committed any kind of misconduct in order for the marriage to be dissolved. While adultery is one of the most common reasons spouses break up, it’s irrelevant to the court — it is not necessary to prove a spouse’s infidelity to end a marriage. However, certain aspects of a divorce case may be affected by adultery in ways that you might not have expected.

What Impact Does Adultery Have on Divorce?

A spouse seeking divorce in California doesn’t need to demonstrate that either party was at fault for the breakdown of the marriage or provide testimony concerning the reasons the marriage failed. In the divorce petition, a spouse only needs to attest there are irreconcilable differences that have damaged the marital relationship so badly that it is impossible to save.

Adultery, sometimes referred to as infidelity, has different meanings to many different people. Some may believe that having an intimate emotional attachment to someone outside a marriage is considered cheating. Others may define adultery as having sexual intercourse with someone other than their spouse. Regardless, a judge in California will not hear evidence of infidelity in determining whether to grant a dissolution of marriage — but it can sometimes play a role in the financial outcome of a divorce.

Extramarital Affairs and Property Division

California is a community property state. This means that property and assets acquired during the marriage will be divided equally in divorce. If a spouse had an extramarital affair, the process of dividing property is usually not affected. However, if the spouse used assets in the marital estate to further the affair — or for the benefit of their paramour — the court may take that dissipation into consideration.

Dissipation of marital assets means squandering the spouses’ financial resources in a way that does not benefit the marriage. If an extramarital affair involved hotel stays, fancy dinners, lavish gifts, and vacations, a court may evaluate the debts incurred. In such cases, the court may order the spouse to repay the amount spent on the affair as restitution. Importantly, this can be difficult to prove unless you have substantial evidence to support your argument in the form of bank statements, credit card statements, bills, and other documents.

Does Adultery Affect Alimony?

In some divorce cases, temporary spousal support or alimony may be ordered to be paid by the higher-earning spouse to the dependent spouse. Just as with property division, adultery will typically not affect an alimony award. An award of alimony is not meant to punish the spouse who was unfaithful, but rather help to ensure the supported spouse is able to get back on their feet. Specifically, it is awarded based on the financial needs of the lower-earning spouse and the higher-earning spouse’s ability to pay.

If the supported spouse chooses to cohabit with their paramour before the divorce is finalized, a judge may reduce or terminate any temporary spousal support payments that were ordered. Should the spouse receiving alimony remarry, the paying spouse’s obligation will end.

Does Adultery Impact Child Custody?

Divorce can be even more stressful when there are children involved. Although adultery itself won’t directly affect child custody matters, a judge might consider specific facts when determining the best interests of the children. Courts want to see divorcing parents put aside their emotions for the well-being of their children. In the event a spouse’s affair changed their ability to parent, a court may assess these facts to determine custody.

If the spouse’s infidelity caused emotional harm to the child or the adulterous relationship would have an adverse impact on the child’s home environment, custody may be challenged. For example, if the affair resulted in changes to the spouse’s living arrangements and the children would not have appropriate accommodations, the court would render a decision based on what is best for the children. Similarly, if the parent or their paramour was abusive toward the children, exposed the children to dangerous individuals, or the affair causes the parent to neglect the child, courts will take this into consideration.

It’s essential to understand that a court will very rarely deny a parent visitation. Even in cases involving abuse or neglect, a judge may order supervised visitation unless it would place the child in harm’s way.

Contact an Experienced Fresno Divorce Attorney

Learning that your spouse has broken your trust or is involved in an extramarital affair can be devastating. In these situations, it’s crucial to have a compassionate and knowledgeable divorce attorney on your side who can advise you of your legal rights and options. With more than 20 years of experience, the Law Offices of Rick D. Banks offers clients reliable representation and diligent counsel as they go through some of their toughest times. To schedule a no obligation consultation, call (559)222-4891.

Categories: Divorce