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How Does Adultery Affect Divorce in California?

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Technically speaking, adultery shouldn’t play a role in your divorce as the court is not supposed to consider infidelity or any other “fault” when they grant a divorce. Judges can, however, consider any financial impact that the partner’s infidelity may have had on their spouse. In very rare cases, the judge may also consider the impact that the infidelity has on the couple’s children.

Therefore, you may go so far as to say that adultery actually can affect divorce in California even though it is a no-fault state. But what is adultery and how exactly will it impact your California divorce?

What is Adultery? Within the context of a family law case, adultery or infidelity or “cheating” can have a number of different definitions. Some define it as an intimate emotional attachment to someone besides your spouse. Others define it as requiring actual sexual intercourse with someone other than the spouse. Still, others will pin the definition at other points between these two extremes. For the purposes of this discussion, we will define adultery as an extramarital relationship that is both intimate and sexual, including but not limited to paid sexual services, one-on-one extramarital relationships, dating relationships outside of the marriage, or relationships that are clearly beyond a business relationship or simple friendship.

Common Impacts of Adultery on California Divorce:

The Spouse’s Trust: Trust is very difficult to earn once it has been lost. As it is also a core value for long-lasting relationships, adultery’s impact on the trust between spouses has landed it on the top 3 list for reasons couples divorce. The loss of trust doesn’t stop at inspiring the marriage’s end; it ripples through the divorce. California state law expects divorcing couples to collaborate during negotiations and resolve issues. It is an emotional challenge and takes effort. Couples who do not trust each other will see the lack of trust impact their divorce process in most cases.

The Couple’s Finances: Adultery can sometimes affect a spouse’s fiduciary duties to the other. Did you know that California law considers spouses as fiduciaries to each other? And as such, the state requires the highest duty of good faith and fair dealing. This leads to a few questions regarding divorce and adulty and the couple’s finances. How long was the affair going on? How much money was spent on the extramarital relationship? As spouses are fiduciaries to each other, does this expenditure of money on the extramarital affair benefit the community? Did the spouse who engaged in the extramarital affair breach their fiduciary duty to their spouse by secretly spending community fund on an adulterous relationship? It’s possible. There is a not black and white answer because there is no California Family code saying that a spouse that engaged in an adulterous affair must reimburse their spouse for 50% of the money spent, but the argument could be made.

The Children: Just because a parent committed adultery doesn’t mean that they are unfit to parent their child. But what if the adultery in a particular situation meant that a parent was regularly paying prostitutes and engaging in illegal activity? What if the parent typically surrounds themselves with individuals who are criminal sex offenders? In these situations, the children could be exposed to danger as a result of a parent’s adultery and as such, the adultery could become a factor to be considered during the divorce proceedings.

If you are worried about how adultery could affect the negotiations during your upcoming divorce or if you need help filing for divorce, please get in touch with one of the experienced California family law attorneys at The Maggio Law Firm today.



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