Adultery is a driving force behind many divorces in California. Under California law, committing adultery does not affect most elements of a divorce case. Adultery alone cannot be used as “ammunition” against an unfaithful spouse to get more marital property or win child custody, for example. However, there are some situations in which the circumstances surrounding infidelity can have an impact.
What Is Adultery?
The definition of adultery in California is a married person having voluntary sexual intercourse with someone who is not their lawful spouse. In the past, when states required proof of fault to get a dissolution of marriage, adultery or “cheating” was a usable ground.
Today, however, California is a no-fault state that doesn’t require proof of adultery or any other fault-based grounds for a divorce to be granted. It is enough to mark “irreconcilable differences” on the Petition for Dissolution of Marriage.
Property Division
Adultery within a marriage may not be a direct influence on a divorce in San Diego, but it could alter certain aspects of the dissolution. The fact that one spouse cheated on the other is not significant in itself; however, if the spouse’s infidelity affected the couple’s joint assets, this could impact property division.
California is a community property division state. Under this law, all of a couple’s shared assets and debts will be divided down the middle by the courts during a divorce case, with 50 percent going to one spouse and 50 percent to the other. Only marital property is included in this division, not separate property that belongs to one spouse.
If an affair involved the unfaithful spouse spending shared money or marital assets on the person outside of the marriage – such as lavish gifts or hotel stays – this could result in a greater share of the marital property being assigned to the other spouse to make up for the adulterer’s wasteful spending.
Child Custody and Visitation
If an affair with someone outside of the marriage could potentially introduce shared children to unsafe settings, environments, situations or people, this could impact a court’s child custody decision. Custody and visitation determinations in California are always based on what is in the child’s best interests.
The courts could deem shared custody a potential threat to a child’s mental or physical well-being if one parent is romantically involved with an unsafe person (e.g., someone with a substance abuse disorder, mental health condition, or background of domestic abuse). This could lead to the courts assigning the other parent primary or full custody.
Spousal Support
Spousal support or alimony decisions are generally not affected by extramarital affairs. Adultery in itself does not automatically grant, guarantee, increase, reduce or bar spousal support in California.
However, there may be exceptions if the couple had a prenuptial or postnuptial agreement specifically addressing spousal maintenance in the event that one spouse cheats. The courts will generally uphold the terms of these agreements as long as they are lawful and valid.
Why You Should Contact a California Divorce Lawyer for a Case Involving Adultery
If your divorce case involves adultery, it is worthwhile to consult with a San Diego divorce attorney about how this could potentially affect the legal side of things. An attorney can protect your rights and help you navigate the tumultuous emotions that often come with these situations. An attorney can help you determine how adultery might impact your divorce case, if at all, so that you can prepare for the process ahead.
