Some states once required that you have some type of grounds for filing for divorce. Today, every state follows a no-fault divorce law, meaning that you no longer must prove your spouse was at fault in some way – you only have to establish that you wish to end the marriage or that your spouse is incurably insane. Additionally, divorce does not have to be an agreement – if you wish to divorce, your spouse does not have to agree with you. Adultery was a commonly-cited reason for divorce in past years, but it is no longer necessary to prove your spouse cheated on you to secure a divorce.
Even though adultery isn’t against the law, an adulterous spouse may still have to deal with the consequences of his or her actions during divorce proceedings. If a judge determines that one spouse’s adultery had any type of measurable impact on the marriage in terms of finances or children, the judge may require the adulterous spouse to pay penalties or lose a portion of the divided property.
Property Distribution in California
In California, property that the couple shares is considered community property and (with a few exceptions) is usually divided equally. The logic behind this is that earning money and purchasing property form the marital estate. When the couple pays their electric bill, for instance, the funds typically come from a shared bank account. If one spouse uses money from the marital estate to the benefit of their infidelity (such as using money from a shared bank account to pay for a weekend stay at a hotel with a paramour), a judge will order the adulterous spouse to repay half of the amount spent as restitution.
Alimony
In some cases, if one spouse was financially dependent on the other, the court may require the higher-earning spouse to pay alimony to the other spouse to ease his or her financial burden. In California, an adulterous spouse isn’t forced to pay alimony due to infidelity. Punitive damages are not awarded on this basis. Instead, alimony is only required based on the financial needs and abilities of the spouses.
Several factors influence alimony determinations, such as whether the spouses decide to cohabitate with new partners. A judge will consider all these factors when determining whether to award alimony payments or how much must be paid. If a judge decides that the lesser-earning spouse’s new living arrangements effectively ease his or her financial burden, the judge may lessen the amount of alimony.
In California, the priority in any divorce involving a child is to determine what would be best for him or her. California believes that every child should be able to maintain a close and healthy relationship with both parents.
Typically, adultery is not considered a factor when assessing a person’s parental capabilities. One spouse’s infidelity would only change this decision should his or her behavior affect the child. If the adultery had any type of adverse effects on a child, such as the adulterous spouse’s new partner abuses the child, a judge may determine that the parent’s new relationship is a danger to the child and adjust the custody arrangement accordingly.
Adultery is frowned upon by most people, but it’s not illegal. It must also interfere with the marriage or the married couple’s finances to have any effect on a divorce. As with any type of divorce case, an Orange County divorce attorney well-versed in divorce law will not only help the entire process move faster, but also help everyone involved to be more at ease with the legal concerns surrounding the divorce.
FAQs
Adultery can be considered when determining spousal support and division of assets. But punishment is not the court's objective. The adulterous spouse may receive less community property and pay more alimony if financial misconduct directly related to the affair is proven.
How does adultery affect divorce in California? ›
California is a no-fault divorce state, which means that neither party has to prove that the other is at fault for the marriage ending. This includes infidelity.
Does infidelity matter in a divorce settlement? ›
While a cheating spouse will not necessarily be “punished” for their infidelity through divorce, however, some elements of the divorce settlement may be affected by their infidelity. These can include the division of marital property, spousal support allocation, and in some cases, child custody.
Do I have to pay alimony if my wife cheated on me California? ›
Cheating does not reduce or eliminate your spouse's eligibility to receive alimony. However, alimony is not automatic or mandatory in California, and there might be a few steps you can take to protect yourself.
Does your wife get half in divorce if she cheated? ›
A: As a community property state, cheating has very little impact on a divorce settlement in California. All assets and property that were obtained during the marriage will be divided evenly between the spouses.
Does infidelity matter in divorce California? ›
Even though California is a no-fault state, and the act of infidelity doesn't legally influence the divorce outcome, it can still indirectly affect the timeline.
How does adultery affect alimony in California? ›
In California, an adulterous spouse isn't forced to pay alimony due to infidelity. Punitive damages are not awarded on this basis. Instead, alimony is only required based on the financial needs and abilities of the spouses.
What rights do I have if my wife cheated on me in California? ›
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.
Does adultery matter in California? ›
Adultery can be a major factor in deciding alimony and child custody. California is called a “no-fault” divorce state, which means adultery doesn't need to be proven for the judge's consideration or decision if you file under irreconcilable differences (a form of no-fault).
Does infidelity prevent alimony? ›
Depending on your state, adultery can completely bar your spouse from receiving alimony. In other states, however, adultery won't prevent your spouse from getting alimony. Instead, the infidelity will be one factor among many that a judge considers. Finally, in other states, the judge won't consider adultery at all.
If a spouse who would otherwise earn alimony is convicted of abuse or domestic violence, there is a presumed or automatic removal of their right to earn spousal support. Other reasons why a spouse may not receive spousal support may include: They have a sufficient amount of separate assets to provide for themselves.
What voids alimony in California? ›
In California, the obligation to pay future alimony automatically ends when the supported spouse gets remarried. Under state law, the paying spouse does not need to file a motion to terminate support, and no court action is required. (Cal.
Can you go to jail for cheating on your spouse in California? ›
Up until the mid-twentieth century, most states considered adultery a criminal offense. This meant that if a cheating spouse was caught in the act, they could be arrested and charged with a crime. Nowadays, a married person having sexual intercourse outside of their marriage is not committing a crime in California.
Is your wife entitled to anything if she cheats? ›
The courts will not punish cheating through adjustment of spousal support. The general guideline for granting alimony is to prevent one spouse from being left with nothing. While half of everything often feels like nothing, many divorces involve no alimony at all.
What am I entitled to if my wife cheats? ›
Adultery does not impact the division of assets and debts directly. However, if one spouse depleted marital assets by using them for purposes that did not benefit the marriage, this can be taken into account, and that amount can be deducted from what that spouse receives.
What rights do I have if my wife cheated on me? ›
So, to be clear: the court does not afford you specific rights if there was cheating but infidelity can tip the scales in your favor and impact your case. This may include changing property division and also allow for certain temporary injunctions while your divorce for cheating case is pending.
Is dating during separation adultery in California? ›
Although dating before your divorce is final is considered adultery, the courts do not consider that when deciding to grant the divorce.
What proof do you need to divorce for adultery? ›
Evidence of adultery requires far more than allegations of hurt feelings. You must go beyond feelings and come up with hard proof that your spouse cheated or had an affair. Evidence could include documentation of the affair, like a photo of your spouse and their sexual partner together, or an admission by your spouse.
