Many people are in the habit of thinking that cheating will automatically
divorce. They think that infidelity will bar the cheating spouse from getting
spousal support. They think that due to the adultery, the cheating spouse
will no longer be entitled to their share of the marital estate. They
think the cheating spouse will end up penniless and they won’t get
the kids. For the most part, these are myths, at least in California.
California is a no-fault divorce state. This means that spouses no longer
have to point fingers at each other and blame the divorce on adultery
or cruel behavior. All a spouse has to do in California to get a divorce
is say, “I want a divorce.” It’s as simple as that and
the courts are not concerned with “why” the marriage failed.
They’re not concerned about who cheated on who, or who was “mean”
to the other spouse, making it impossible for the innocent spouse to live
under the same roof as their husband or wife.
Adultery Often Matters in Other States
If you previously thought that adultery would matter to the California
courts, perhaps you previously lived in a state that allows for fault-based
divorces. No-fault divorce takes a modern approach to marital dissolutions,
whereas states that still have fault-based divorces are more traditional.
Common fault-based grounds for divorce in some other states include abandonment,
cruelty, a felony conviction, insanity, and of course, adultery.
Though California does not give much thought into adultery in a divorce,
we can tell you that other states typically define adultery as “sexual
intercourse” between people who are not married to each other. If
the “cheating” never went passed kissing or groping, or if
it only involved racy text messages, emails, or direct messages on social
media, it does not meet the requirement for “adultery” in
most states that offer fault-based divorces.
In the United States, we do not have fault-based states and no-fault states.
Instead, all states are either mixed states or no-fault states. California
is a no-fault state, while in New York and Pennsylvania for example, spouses
can choose between a fault and a no-fault divorce, thus NY and PA are
Some of the “true” no-fault states include:
The above no-fault states do not let people file for divorce on the traditional
fault-based grounds, such as adultery, cruelty, or abandonment. California
does however, let people file for divorce if their spouse is insane or
To file for divorce for this reason, you have to convince the court that
your spouse is insane. You can’t merely say that your spouse is
acting crazy. Rather, you’d need a doctor to confirm your spouse’s
mental state or that he or she is in a mental institution. Even still,
spouses rarely file for divorce on this ground. It’s easier to file
for a no-fault divorce.
Can Adultery Affect Spousal Support in California?
In California divorces, judges have discretion when it comes to awarding
spousal support. The basic goal of spousal support is to ensure that the
lower-earning spouse does not become penniless because of the divorce.
If the higher-earning spouse is trying to fight paying spousal support,
the case will go before a judge. The judge will look at the totality of
the circumstances before rendering a decision. The judge will look at
the dependent spouse’s need for support and the supporting spouse’s
ability to pay it.
The factors considered when deciding on a spousal support award, include
but are not limited to:
- The age and health of both spouses.
- The length of the couple’s marriage.
- Contributions as a homemaker or stay-at-home parent.
- One spouse’s financial contributions to the other spouse’s
education and career.
- Any history of domestic violence.
- The tax consequences of awarding spousal support for each spouse.
- If the dependent spouse will have custody of the children, and if so, their
ability to find a good job and support the children.
- The standard of living established during the marriage.
If you notice, adultery was not on the list of considerations. That’s
because as a general rule, marital misconduct is NOT considered when a
judge is deciding whether or not to award spousal support. The purpose
of spousal support in California is to help a dependent spouse get back
on their feet and become self-supporting and to ensure that the lower-earning
spouse does not become poor as a result of the divorce. In no way does
spousal support punish a spouse for bad conduct during their marriage.
The One Exception
There is one exception in particular where bad behavior might affect spousal
support in a California divorce, but it has nothing to do with infidelity.
If a spouse has been
physically abusive; for example, if they have committed spousal abuse or child abuse and
this individual is the supported or dependent spouse, it could result in the
spousal support being reduced or eliminated altogether.
What About Child Custody?
Cheating does not automatically impact child custody, nor does it usually
have any impact on the outcome of a child custody case but in extreme
circumstances, it can. Here are some examples of how a parent’s
affair can affect the outcome of a child custody case:
- The cheating spouse makes their adulterous relationship public and it upsets
- The adulterous spouse leaves the children alone overnight so they can be
with their new boyfriend or girlfriend.
- The cheating spouse posts pics all over social media of them dating someone
new before the divorce is final and it upsets the children.
- The cheating spouse neglects their children so they can enjoy their new partner.
- The cheating spouse is sloppy about their new relationship and not only
do the kids know about it, the children feel like they are playing second
fiddle to the new love in their parent’s life.
If someone is in the middle of a divorce and they do see other people,
they would be well-advised to keep the relationship private and to not
share it with the children until
after the divorce is finalized. Otherwise, dating during a divorce can impact
child custody for the worse if the cheating spouse is not cautious and
considerate of their family’s feelings.
3 Rules for Dating After Divorce
This was a summary on how adultery affects a divorce. If you need divorce
representation in Los Angeles, don’t hesitate to
contact Claery & Hammond, LLP for assistance.