How Does Adultery Affect Divorce in California?

• Divorce law: Adultery is not a crime in California
• California is a no-fault divorce state
• How adultery could affect your divorce settlement
• What constitutes proof of adultery in California?
• References

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 might 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 committing 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 hypothetical 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 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. These are a few ways in which your settlement might be adjusted due to infidelity. Here are some of them:

Asset distribution

California courts must approve all divorce plans, including asset and debt distribution. Per California codes, courts can shift assets from one party to another if one side can prove that the other deliberately misappropriated funds to the exclusion of the other side.

For example, if you can prove that your spouse used household funds to do something like pay for a romantic getaway with a new partner or pay for that person’s education, you could use those receipts to prove that you deserve a larger settlement. You may have a stronger case to keep the family home, car, or other assets that would normally be subject to a 50/50 split.

Child custody arrangements

California courts open divorce cases with the assumption that joint custody is best for shared children. However, adultery could prove that one person is a better fit for primary custody, while the cheater should have simple visitation rights only.

If the new partner has been too familiar or otherwise inappropriate with the child, that’s a clear reason to fight for more time with the kids. Similarly, if the affair causes your child significant emotional distress, the judge might consider that factor when approving sharing schedules.

Potential for spousal support

Spousal support involves one person making payments to another while the divorce case is happening or after it has been finalized. If the adultery somehow makes it harder for you to attain gainful employment after divorce, you could raise it as a factor in your spousal support agreement.

For example, a spouse’s infidelity may have increased your childcare burden. You couldn’t get an education and take care of your children because your partner wasn’t available to help. That lack of education, indirectly caused by the infidelity, could translate to a bigger spousal support payment.

Courts could also use proof of adultery when approving temporary spousal support payments. If you can prove that your partner is siphoning off communal money to support a new love, the courts could award you more money while you settle your split.

What constitutes proof of adultery in California?

Since California is a no-fault state, you’re not required to prove that your partner cheated to get a divorce. You don’t have to hire a private detective or get photos of your partner in compromising situations. However, if you want to use your partner’s behavior in the proceedings, you will need at least some proof.

Good types of evidence to bring to your lawyer include the following:

•   Receipts: If your partner used community funds (like a shared checking account) to pay for the affair, that evidence is critical for your case.
•   Reports: If your partner used prostitutes or otherwise came into contact with the police, those official documents could help sway the judge in your favor.
•   Calendars: If your partner’s cheating meant days or weeks away from the family home, that could be proof that you should keep it.

Your legal team can help you understand what information you should gather and what you should do with it. In general, the more hard evidence you can find, the better.

How could mediation help with adultery in California?

You know your spouse has been unfaithful, and you have plenty of evidence on hand. While you could use it to attack your partner in court, there is another way.

Mediation involves a structured conversation between two people engaged in a court case. The mediator doesn’t take sides, but this person can help the two parties design an equitable solution to their disagreements.

During mediation, you could bring proof of the adultery and discuss its impact on your children and your financial future. You could find an arrangement that works best for you both.

At the end of a successful mediation process, you could move from a contested California divorce battled out in court to a split via a written agreement. You and your partner craft a document with all of your details clearly spelled out, the courts review it, and you move forward without a long and expensive battle.

Watch: If Your Ex Cheated, Can You Get More Money In Divorce?

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.

Want to learn more? Click here to schedule a free 15-minute phone consultation with one of our account coordinators.

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