Adultery is often a leading cause of marital breakdown in California, leading many couples to seek divorce. In California, where family law strives to balance fairness and equity, the role of adultery in divorce proceedings is often misunderstood. California is a no-fault divorce state, meaning neither spouse should prove wrongdoing to file for divorce. However, infidelity can still influence certain aspects of the divorce process.
This blog discusses how adultery can affect alimony, child custody, property division, and the overall timeline of a divorce in California. With this information, you can maneuver your legal options and outcomes during your divorce proceedings.
California Is A No-Fault Divorce State
California's no-fault divorce laws, established under the Family Code Section 2310, state that spouses do not need to prove infidelity or any other misconduct to file for divorce. The only grounds required are "irreconcilable differences" or "permanent legal incapacity to make decisions." This approach simplifies the legal process and focuses on resolving the practical aspects of divorce rather than assigning blame.
Even though the court does not consider adultery when granting a divorce, it can still indirectly affect various components of the divorce settlement.
Is Adultery A Crime In California?
Adultery is generally defined as voluntary sexual intercourse between a married person and someone who is not their spouse. Historically, adultery was considered a crime in many jurisdictions, including some parts of the United States. However, societal attitudes and legal standards have evolved significantly over time.
In California, adultery has not been considered a criminal offense for many decades. The state’s legal system has shifted towards a more progressive and equitable approach, focusing on the practical aspects of divorce rather than moral judgments about personal behavior.
Even if adultery is not a criminal offense, it can still have legal implications under family law, particularly in divorce proceedings. These implications are indirect and relate to alimony, child custody, and property division rather than criminal punishment.
California operates under a no-fault divorce system, meaning that spouses do not need to prove fault or wrongdoing, such as adultery, to obtain a divorce. The grounds for divorce are typically "irreconcilable differences" or "permanent legal incapacity to make decisions." This approach simplifies divorce procedures and reduces the need for adversarial legal battles over personal misconduct.
As discussed in the sections below, adultery is not directly considered in awarding alimony or spousal support. But financial misconduct related to an affair, for example, spending marital funds on the affair, can influence the court’s decision. Similarly, adultery is not a direct factor in determining child custody and visitation. However, if the affair affects the child's well-being or the stability of the parent’s household, it may be considered indirectly.
Infidelity can impact property division if it involves the dissipation of marital assets. Courts may adjust the property division to account for significant financial expenditures related to the affair.
Implications Of Infidelity On Alimony And Spousal Support Awards In California
In California, the determination of alimony, or spousal support, is primarily guided by the principles of fairness and financial need rather than marital misconduct. As a no-fault divorce state, California does not directly consider infidelity when awarding spousal support.
However, there are several indirect ways in which adultery might influence these financial decisions.
Under California Family Code Section 4320, factors that the court considers when determining spousal support include:
- The length of your marriage
- The needs of each party, based on the standard of living established during the marriage
- The age and health of both parties
- The earning capacity and job market for each party’s skills
- Contributions to the education and career of the other spouse
- The balance of hardships for each party
- The goal that the supported party will be self-sufficient within a reasonable period
Notably absent from the above list is any mention of marital misconduct, including adultery. Adultery itself is not a direct factor in awarding spousal support, but it can influence the court’s decision in several indirect ways.
If one spouse spent significant marital resources on the affair—such as gifts, vacations, or housing for a paramour—this could be seen as financial misconduct. The court may consider this depletion of marital assets when dividing property and awarding spousal support. This could reduce the amount the unfaithful spouse might receive or increase the amount they must pay.
In some cases, the emotional toll of infidelity can affect the stability and mental health of the wronged spouse. If the affair has significantly affected their ability to work or maintain a standard of living, the court might consider these factors when deciding on spousal support to ensure fairness and support the wronged spouse’s recovery and stability.
The court does not assign fault for the divorce, even though a history of infidelity may be indirectly considered to determine how each spouse contributed to the breakdown of the marriage. If one spouse's infidelity is part of a pattern of behavior that undermined the marriage, the court might be more sympathetic to the wronged spouse's financial needs.
Infidelity can affect negotiations and settlement discussions. The emotional leverage of a betrayed spouse can lead to settlements that are more favorable to them, even if the court does not formally recognize adultery as a factor. This can include higher spousal support in a negotiated settlement to avoid a protracted court battle.
The Effect Of Infidelity On Child Custody And Visitation
Child custody and visitation rights are sensitive aspects of any divorce proceeding. The primary consideration in determining custody and visitation in California is the child's best interest. Unlike spousal support, where financial misconduct might have an indirect influence, infidelity typically has less direct impact on child custody and visitation arrangements. However, there are circumstances under which an affair can affect these decisions.
Under Family Code Section 3011, the court must consider the following when determining the best interest of the child:
- The child’s health, safety, and welfare
- Abuse history by a parent against their child or the other parent
- The nature of contact with both parents
- The abuse of controlled substances or alcohol by either parent
The law emphasizes that the child’s well-being is paramount, and all decisions are made to support this principle.
If the affair demonstrates a pattern of irresponsible or unstable behavior that impacts the parent’s ability to care for the child, it may be considered. For example, if a parent's affair led to neglect or significantly distracted them from their parenting responsibilities, the court might question their fitness as a custodial parent.
If the unfaithful parent’s living arrangements post-separation are unstable or deemed inappropriate for the child. For example, if you move to an environment not conducive to the child’s welfare, the court may limit custody or visitation rights.
Infidelity can cause significant emotional distress to the betrayed spouse, potentially affecting their parenting abilities. However, if the unfaithful parent’s behavior creates a hostile environment, this may impact the child’s emotional well-being and influence the court’s custody decisions.
Although moral character is generally not a primary consideration, the court may look unfavorably at a parent whose infidelity involved behaviors that could negatively impact the child. This includes exposure to inappropriate relationships or situations.
In cases where the child is of sufficient age and maturity, the court may consider the child's preference. If the child expresses discomfort or unwillingness to spend time with the parent who committed adultery, the court might take this into account.
Adultery Can Impact Property And Asset Division In California Divorces
In California, the division of property and assets during a divorce is governed by community property laws. This means all assets and debts acquired during the marriage are typically divided equally between the spouses. While California's no-fault divorce principles mean that adultery itself does not directly affect property division, there are circumstances where infidelity can indirectly influence the outcome.
Per Family Code Section 760, all property acquired during the marriage by either spouse is considered community property and is subject to equal division. This includes earnings, real estate, vehicles, and other tangible and intangible assets.
Property owned by either spouse before the marriage or acquired by gift or inheritance during the marriage, is considered separate property and is not subject to division. Property acquired by either spouse while living in another state would be considered community property if acquired in California.
Adultery does not directly affect property division. It can have indirect effects in several ways:
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Dissipation of Marital Assets
If one spouse uses marital funds or assets to support an extramarital affair—such as spending on gifts, trips, or housing for a paramour—this could be considered a dissipation of marital assets. Courts may consider this and adjust the property division to compensate the wronged spouse for the lost assets. For example, if significant funds were spent on the affair, the unfaithful spouse might receive a smaller portion of the remaining marital assets.
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Economic Misconduct
Adultery that involves financial misconduct, such as hiding or transferring assets to support an affair, can affect the property division. If a spouse is found to have engaged in deceptive practices to benefit their affair, the court might award a larger share of the marital property to the other spouse.
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Emotional Distress and Negotiations
The emotional impact of infidelity can affect negotiations and settlements. A betrayed spouse might be more motivated to seek a favorable property settlement as part of the divorce agreement. This can lead to settlements that indirectly reflect the consequences of the affair.
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Impact on Business Valuation
If one spouse’s infidelity affects a jointly owned business—for example, by creating instability or damaging the business’s reputation—this could impact the valuation of the business and, consequently, the division of this asset.
How Infidelity Could Impact The Divorce Process Timeline
The divorce process in California can be lengthy, often taking several months to over a year to finalize. Infidelity is not a direct factor in the grounds for divorce and can still have significant implications for the timeline and various stages of divorce proceedings.
The basic timeline for a divorce in California typically includes:
- Filing the Petition – One spouse files a Petition for Dissolution of Marriage with the court.
- Serving the Petition – The petition is served to the other spouse, who has 30 days to respond.
- Financial Disclosures – Both spouses must complete and exchange financial disclosure forms.
- Settlement Discussions and Negotiations – The spouses negotiate the divorce terms, including property division, alimony, child custody, and support.
- Court Hearings and Trial – If an agreement cannot be reached, the case may go to court for a judge to decide.
Infidelity often leads to heightened emotions and conflict between spouses, which can complicate negotiations and settlement discussions. The added emotional strain can make it more difficult to reach agreements, leading to prolonged disputes and a lengthier divorce process.
If infidelity involves significant financial misconduct, such as hiding assets or spending marital funds on the affair, this can necessitate detailed financial investigations. Uncovering hidden assets or tracking financial misdeeds can take considerable time, especially if forensic accountants are involved.
The emotional impact of adultery can make one or both spouses less willing to compromise, leading to extended negotiations. The betrayed spouse may demand more favorable terms, and the unfaithful spouse may resist, prolonging the settlement process.
In cases where infidelity has significantly impacted the marital relationship, the court may need to intervene more frequently. This can include additional hearings to address financial misconduct, child custody disputes, or property division issues, which can extend the timeline. Infidelity can complicate child custody and support arrangements if it affects the stability and well-being of the children. Disputes over what is in the best interest of the children can lead to prolonged custody battles and additional court hearings.
The emotional toll of dealing with infidelity can also slow the divorce process. Both spouses may need time to process their feelings, attend counseling, or focus on their mental health, which can delay proceedings.
What Constitutes Proof Of Adultery In California?
Proving adultery is not necessary to obtain a divorce. However, there are scenarios where demonstrating infidelity may become relevant, particularly in matters involving financial misconduct, child custody, or property division.
Since California does not require proof of fault for divorce, the burden of proving adultery is not as stringent as in states where fault-based divorces are still prevalent. However, if one spouse's infidelity has financial or custodial implications, presenting evidence of the affair may be beneficial. Types of evidence you could gather to prove adultery include:
Direct Evidence
Examples of direct evidence include the following:
- Photographs and Videos. Visual proof showing the unfaithful spouse with their lover in compromising situations can be compelling. Surveillance footage, private investigator reports, and even social media posts can be direct evidence.
- Witness Testimony. Eyewitness accounts from friends, family members, or private investigators who have observed the infidelity can support claims of adultery.
- Admissions of Guilt. Emails, text messages, or recorded conversations where the unfaithful spouse admits to the affair can be used as direct evidence.
Circumstantial Evidence
Circumstantial evidence that could be beneficial are:
- Financial Records. Bank statements, credit card bills, and receipts showing expenses related to the affair, such as hotel stays, gifts, or travel expenses, can indicate adultery. This is especially relevant if expenses involve marital assets.
- Phone Records. Call logs and text message histories showing frequent communication with the alleged lover can be circumstantial evidence.
- Social Media Activity. Posts, messages, and interactions on social media platforms that suggest an intimate relationship can also serve as circumstantial proof.
Expert Testimony
- Private Investigators. Professional investigators can provide detailed reports and testify about their findings regarding the infidelity. Their expertise can add credibility to the evidence presented.
- Forensic Accountants. Forensic accountants can analyse financial records in cases involving significant financial misconduct to identify irregularities or expenditures related to the affair.
Admissibility and Impact of Evidence
When presenting evidence of adultery in court, ensure it is legally obtained and admissible. Evidence that violates privacy laws or was acquired illegally, such as unauthorized wiretapping, may be excluded from court proceedings.
While proving adultery is not necessary for the divorce itself, this evidence can have a substantial impact on specific aspects of the divorce case. For example, demonstrating that a spouse used marital assets to support an affair is considered financial misconduct. This can influence property division and potentially lead to the unfaithful spouse receiving a smaller share.
Evidence of adultery may be considered in custody and visitation decisions if the affair negatively impacts the child's well-being or the stability of the household.
Find A San Diego Divorce Attorney Near Me
California's no-fault divorce system simplifies some aspects of divorce proceedings. However, the indirect implications of infidelity on financial, custodial, and property matters can complicate the situation. Divorce often involves negotiations over alimony, child custody, and property division.
You want to protect your rights and interests throughout the divorce process by retaining a knowledgeable and experienced divorce attorney. At San Diego Divorce Attorney, we specialize in providing comprehensive legal support to individuals dealing with divorce issues, including those involving infidelity.
Contact us today at 858-529-5150 to schedule a consultation. We are here to help and represent you in divorce proceedings.
