How Does Adultery Affect Divorce in California?

Going through a divorce, your emotional well-being is bound to take a hit, no matter the reason. If your spouse had sexual relations with another person, that can make your break-up all the more devastating – and you may feel like getting “revenge” on your spouse in your divorce proceedings.

While this emotion is totally reasonable, basing a divorce case entirely on the grounds of adultery may not be as easy as you think.

Divorce law: Adultery is not a crime in California

Adultery has been around as long as marriage, and it has always been considered grounds for divorce. The reason is simple: When one spouse commits adultery, it destroys trust between the married couple.

But while cheating has always been considered grounds for divorce, adultery laws have not always been so clear. Up until the mid-twentieth century, most states considered adultery a criminal offense. This meant that if a cheating spouse was caught in the act, they could be arrested and charged with a crime. 

Nowadays, a married person having sexual intercourse outside of their marriage is not a crime in California. Nevertheless, an act of adultery is still one of the top reasons couples get divorced. In fact, a recent study found that infidelity is at the root of over one-half of all divorces. 

Finding out you have an adulterous spouse can be devastating. You may feel like you can't trust them anymore. It can negatively impact your mental health. According to one study, people who learn of a spouse’s infidelity are more prone to depression and anxiety.

California is a no-fault divorce state

You may want payback for your spouse’s adultery. You may want to hold them accountable for the end of your marriage. That's understandable, and the fact that your spouse had a sexual relationship with someone else may allow you to allege fault in your divorce – though doing so could make your divorce case more complicated.

California is a no-fault divorce state, which means you can get a divorce based on “irreconcilable differences.” No-fault divorces are often quicker and easier than at-fault divorces because one spouse does not have to jump through legal hoops – sometimes hiring a private investigator or gathering direct or circumstantial evidence in other ways – to prove wrongdoing.

A big advantage of no-fault divorce is that it can be a lot faster and simpler than at-fault divorce. There's no need to prove anything, so divorce proceedings move more quickly. And since there are no allegations of wrongdoing, there's also less chance of things getting nasty and drawn out in court.

If you were to file for divorce in an at-fault state, you would need to provide evidence that your spouse had done something wrong – in this case, adultery. Your proof could include testimony from witnesses, emails or texts between your spouse and the other person, or even financial records that show that your spouse spent marital funds on the other person. If you could prove that adultery occurred and caused the end of the marriage, you would be eligible for divorce on those grounds.

However, proving adultery can be difficult. Your spouse may deny that anything happened, or they may claim the affair was just a one-time thing. If there's no solid evidence, the court may be unable to rule in your favor.

How adultery could affect your divorce settlement

Going the no-fault route is often the quicker course of action and, during your divorce settlement negotiations, you could possibly still use your spouse's infidelity as leverage to gain more of the marital assets. For example, if your spouse used marital funds for the purposes of the affair, that could influence how property is divided. You may have a stronger case to keep the family home, a car, or other assets that would normally be subject to a 50/50 split.

If you’re contemplating divorce in the wake of an extramarital affair and need legal advice or other guidance on how to proceed, Hello Divorce is on your side. We have customizable online divorce plans from which to choose as well as divorce coaching, mediation, and attorney services, all of which you can access online for a flat-rate fee. 

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