Adultery & Divorce Laws in California

By Beverly Bird

Most people believe that cheating on your spouse is wrong, but whether or not it can get you in legal trouble depends on where you live. California’s divorce laws are forgiving of adultery. This doesn’t necessarily mean that a straying spouse will get off scot-free, however.

Grounds for Divorce

California was the first state to implement the concept of no-fault divorce in 1970. Since that time, you only have two options for filing for divorce: That your marriage is irretrievably broken or that your spouse is incurably insane. In either case, you don’t need your spouse’s agreement to end your marriage. California courts are not supposed to consider infidelity or any other fault when granting a divorce. However, judges can consider the financial impact a partner’s adultery might have on the non-straying spouse. In rare cases, a judge might consider if the adultery had any effect on the children of the marriage.

Effect on Property Distribution

California is a community property state, so you and your spouse equally own anything acquired during the marriage, except if one of you received it by gift or inheritance. California calls this your marital estate, and it includes income. If an adulterous spouse spends any of his income on his paramour, he’s effectively taking it from the marital estate, and the court will hold him accountable for this. A judge can’t give one spouse more property because she was wronged, but he can order the straying spouse to reimburse the marital estate for half the money he spent: his spouse’s portion. This would require the wronged spouse to produce proof of what her partner spent, however, so she could get her half back.

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Effect on Spousal Support

California law addresses adultery with respect to alimony, but not in the way you might expect. If a spouse is guilty of infidelity, the court won’t order him to pay support because of his misconduct, because that would be punitive. A judge can only base alimony on the financial needs of one spouse and the ability of the other spouse to pay it. This can be pivotal, however. If the wronged spouse begins cohabiting with a new significant other after she and her spouse break up, but before the divorce is final, Section 4343 of the California Family Code says that this “decreases” her need for financial support. A judge can consider this and award less alimony accordingly.

Effect on Custody

Adultery least affects the court's decisions regarding custody in California. Like all states, California bases custody on what is in the best interests of the child, and the state believes that a healthy and close relationship with both parents is in a child’s best interests. A spouse’s infidelity would have to interact with his children in such a way as to weigh on his fitness as a parent, such as if he engaged in an intimate or sexual act with his paramour in their presence.

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