If you recently discovered that your spouse has been cheating on you, you may be curious as to the legal options and remedies that are available to you as a victim of adultery. In California, infidelity is not a crime or tort (civil wrongdoing), meaning you cannot file a lawsuit against your spouse for having an affair. However, adultery could come up in different ways during a California divorce case.
Is Adultery a Civil Tort?
No, adultery is not currently a civil tort in California. In the past, there were laws that allowed people to sue for infidelity. Many states also used to criminalize adultery. Today, however, unfaithfulness in a marriage is not a crime or legal tort in the State of California. A tort is a type of wrongdoing that can lead to a personal injury lawsuit, such as negligence or intent to harm. The current law means you cannot sue your spouse for having an affair or press criminal charges.
However, there are exceptions if the situation is extreme or turns violent. For example, if your spouse’s affair results in a domestic violence situation where your spouse is physically violent or confrontational with you, you may be able to sue for assault or battery. This is also true if your spouse or the person he or she cheated with is stalking you, threatening you, harassing you, or committing other crimes against you. In these cases, you may be eligible for financial compensation through a civil lawsuit in addition to your spouse facing criminal charges.
California Is a No-Fault Divorce State
California is a no-fault divorce state, meaning couples do not need to prove fault to get divorced. In the past, fault laws required proof of fault or a valid reason for the dissolution of marriage, such as evidence of unfaithfulness or fraud. Today, this is no longer a requirement. Couples can simply cite “irreconcilable differences” to get divorced, meaning the marriage is irretrievably broken and cannot be repaired. California law no longer offers fault-based divorce filings, and the courts will not consider the reason for the split when handling the case.
How Infidelity Could Affect Your Divorce Case
If your spouse’s infidelity results in a divorce or legal separation, you cannot sue for the costs of your split. However, adultery may affect your divorce case in various other ways, such as:
- Property division – a judge may consider the financial impact the adulterous act has had on the marital estate. This could lead to a requirement for your spouse to reimburse the estate for these losses.
- Alimony – if your ex-spouse is cohabitating with someone else during or after your divorce, this can directly impact an alimony order. You may owe your ex less in spousal support or nothing at all, depending on the situation.
- Child custody – infidelity could potentially impact child custody if your ex-spouse is bringing a new love interest around your child. If the courts view this as a potential risk to your child’s safety or well-being, it could alter the custody agreement in your favor.
If your marriage involves a prenuptial or postnuptial agreement with an infidelity clause, this can also change what your divorce case looks like. A San Diego legal separation lawyer can help you enforce this agreement.
How a Divorce Lawyer Can Help You
Finding out that your spouse has been unfaithful is a terrible blow. You may not know how to protect your rights or deal with the divorce process. The best thing you can do for yourself and your family during this difficult time is to consult with an experienced and aggressive San Diego divorce attorney. A divorce lawyer can help you understand your legal options and what to expect from the legal process ahead. If bringing up the infidelity is in your best interest during a divorce case, your lawyer can employ this strategy. Learn more during a free case review with a lawyer at Boyd Law.