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Does Cheating Affect Divorce in California?

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Many people are in the habit of thinking that cheating will automatically impact their 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 mixed states.

Some of the “true” no-fault states include:

  • California
  • Colorado
  • Florida
  • Hawaii
  • Iowa
  • Indiana
  • Kansas
  • Kentucky
  • Montana
  • Michigan
  • Minnesota
  • Missouri
  • Nevada
  • Nebraska
  • Oregon
  • Washington

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 mentally incompetent.

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 their children.
  • 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.

Related: 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.

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