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Will an Affair Affect My Divorce Settlement?

A Legal Team You Can Trust

Marriages end for all sorts of reasons, and one of the most common reasons is the discovery or disclosure of an affair. When one spouse has been unfaithful to the other, a breakdown of trust occurs that can irreparably damage the marriage and lead to divorce. As destructive as infidelity can be to a marriage, though, you might be surprised to learn that it doesn’t affect a divorce settlement as much as most people believe it can.

Contrary to popular belief, the existence of an affair usually has little to no bearing on the outcome of the divorce settlement. This is especially true for divorces in California, which mandates the 50/50 split of community property between divorcing spouses. This equal division of assets and debts applies without regard for the existence of an affair on either spouse’s behalf. In other words, extramarital affairs are mostly irrelevant when it comes to dividing community property.

We say “mostly,” though, because there can be an important exception: If a spouse used community property to fund their affair, the judge may consider money spent on the affair as counting toward the cheating spouse’s half of the marital settlement. This can happen because community assets are expected to benefit both spouses. If one spouse is spending community money on their affair, the other spouse is excluded from the benefit that money could provide.

Legally speaking, this would be considered dissipation, as could other behaviors like excessive gambling or spending.

For Example

Spouse A and Spouse B share $1 million in assets. In theory, each spouse is entitled to $500,000 in the divorce settlement because community property is split 50/50. Spouse B, however, spent $50,000 on dinners, vacations, and gifts during their affair.

To the judge’s satisfaction, Spouse A proves that the affair occurred and proves that $50,000 was spent on the affair. As a result, the judge orders a divorce settlement of $500,000 to Spouse A and $450,000 to Spouse B, considering $50,000 of Spouse B’s share of community property as already spent on the affair.

What If My Spouse Overspent Their Share of Community Property?

There are situations where a spouse could overspend their share of community property, effectively cutting into the half that their spouse would be entitled to in a divorce settlement. If a spouse’s affair costs them more than what a judge can award to the other spouse in a fair settlement, the judge may order that the cheating spouse make payments to the other spouse to make up for the difference.

It’s Not about Punishment

An important thing to keep in mind when it comes to a division of property that takes an affair into account is that it’s not about punishing infidelity. Rather, it’s about making sure that there is an equal division of assets and property in a divorce settlement, which can’t occur unless a spouse’s dissipation of community assets is taken into account.

Do You Need Legal Help?

If you find yourself facing a legal challenge during your divorce that you believe overspending on an affair may have caused, contact the reliable attorneys at Claery & Hammond, LLP for help today.

Reach out to us online or call (619) 567-6704 to get started now!

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