Adultery in Divorce

adultery in divorce

How Can Adultery Impact the Outcome of Your California Divorce?

California is a community property state where couples split their assets and debts equally in a divorce. But if a spouse cheats, do they still get half of the marital estate?

Divorce is hard enough on its own, even more so when infidelity is involved. Emotions are bound to run high. Despite divorce being a legal process, it’s also deeply personal.

If you’ve been wronged by a cheating spouse, you might hope for consequences in the divorce process to reflect the hurt and betrayal that you feel. But adultery is not illegal on its own. An affair can affect divorce property distribution only in limited ways.

Whether adultery affects your divorce settlement financially or not, the emotional fallout from an affair can leave a significant mark on your divorce proceedings. Divorces involving infidelity require a sensitive and deft legal hand to properly resolve your issues.

Are There Legal Consequences to Committing Adultery in California?

While some states have made adultery illegal, California is not one of them. On its own, adultery or cheating by either spouse is not likely to affect a divorce in California. But the nature or effects of the affair on your family might make a difference.

California is a no-fault divorce state, where it doesn’t matter why your marriage failed, only that you and your spouse have irreconcilable differences. No-fault divorce helps you avoid arguing over the reasons behind your split. This makes the process much easier on both spouses, especially if your family has children. You save time and avoid the added emotional turmoil of rehashing your relationship mistakes in court or over a negotiation table.

While adultery itself may not affect the outcome of your divorce, the cheating spouse’s actions while committing adultery might make a difference for spousal support, child custody, or property division. When assessing how an affair can impact your divorce, you must put emotion aside and consider the objective impact of the affair on the marriage.

Can Adultery Affect Your Divorce Settlement in California?

A Bay Area divorce lawyer can help you evaluate how an extramarital affair could affect the final terms of your separation. The answer will depend on the specific facts of your case. In general, judges don’t consider adultery when determining alimony between divorcing spouses.

Adultery can affect your divorce terms in some limited circumstances, such as:

  • If a cheating spouse spends marital or community funds on their extramarital affair (including gifts, hotel bills, or other financial support) they may be responsible for reimbursing the marital estate for those funds. When dividing your property, the cheating spouse may receive less in assets or funds to offset their extramarital spending. As the harmed spouse, you must show evidence to prove your claims.
  • If a cheating spouse leaves your marital home to live with their lover before the divorce is finalized or immediately after, a court may determine that they don’t need as much alimony or spousal support as they would otherwise get if they were to live alone. This could be reflected in the terms of your divorce settlement or divorce decree.

If you know or suspect that your spouse is having an affair, you may have to investigate how the affair has affected your marital estate. An investigation could involve a forensic accounting or audit of all your jointly held assets or bank accounts to weed out any unfamiliar transactions.

Your attorney will know what to look for and can help spearhead this investigation. As a married person in California, you have the right to 50% of your marriage’s community property. A cheating spouse with an extramarital affair cannot take away what is rightfully yours under the law. Fortunately, California family law can work to “make you whole” in a divorce, by balancing the terms of your final property division to make up for the wasted funds.

Can Adultery Affect Child Custody in a California Divorce?

Divorce can be even more stressful when you have kids. An affair can make co-parenting more difficult, especially if feelings are hurt. If you end up sharing custody of your children, they may end up living part-time with your ex-spouse and their new partner. It’s natural to be concerned about them staying under the same roof as a potential stranger.

While adultery on its own won’t affect the outcome of a child custody dispute, certain facts could become relevant when considering the best interests of minor children. A court may consider adultery a determining factor in custody issues if:

  • The spouse’s cheating has caused actual emotional harm to the child, or
  • The adulterous relationship would adversely affect the child’s home environment.

If you want to challenge your spouse’s right to custody on either of these claims, you must have actual evidence to show as proof. The state of California encourages children of divorced couples to maintain healthy relationships with both parents. Merely engaging in an affair isn’t enough to qualify a parent’s behavior as adverse or harmful under the law.

For example, claiming your spouse’s home is unfit because they have too many sexual visitors or their new partner is a “home-wrecker” may backfire if you bring it up in California family court. When it comes to custody, courts want to see both spouses put their anger, hurt, and betrayal aside for the well-being of their children. Holding an emotional grudge or trying to use the family court system to punish your spouse for cheating may undermine your own case for custody.

In contrast, it would be relevant to show proof of potential harm or adverse effects, like:

  • Your spouse’s new partner having a documented history of violence or abuse
  • Your spouse’s new relationship causing them to neglect your kids
  • Your spouse taking reckless or dangerous risks for the affair

In order to prevail on your claims, you must present actual evidence or testimony showing an adverse effect on your children’s safety when they stay with your ex.

Divorce can be complicated and painful. Infidelity only raises the emotional stakes. A San Francisco divorce lawyer can help smooth out the process and advocate on your behalf to achieve the best outcome for you and your children.