Adultery and Divorce in California

Did your spouse cheat on you? Has his or her affair led to the breakdown of your marriage? If you are considering filing for divorce, you may be wondering what impact will your spouse’s adulterous acts have on property division, alimony, or child custody and support. Well, depending on the nature of the infidelity, it can play a huge role in how the marital estate is divided. Read on to learn more about adultery and divorce in California.

California Adultery Law

Adultery is defined as voluntary sexual intercourse by a married person with someone other than his or her spouse. In some states, it is possible to legally end a marriage based on a spouse’s adulterous acts. For example, in Louisiana, adultery is one of three standard grounds for divorce. A spouse will have to prove that his or her spouse committed adultery in order to establish “fault” and prove that it led to the breakdown of their marriage.

In California, which is a no-fault state, the standard grounds for divorce are:

1. Incurable insanity
2. Irreconcilable differences

Adultery is not a valid legal ground for divorce in California. Courts do not consider evidence of adultery when deciding whether to grant a divorce.

How Adultery Affects Divorce

A judge can consider the financial impact a spouse’s adulterous acts has on the marital estate. For example, if the adulterous spouse spends any community property funds on his or her lover, he or she will be held accountable for reimbursing the marital estate. This does not mean a judge will give one spouse more property because he or she was cheated on. However, the judge can order the adulterous spouse to reimburse the marital estate for half the money he or she spent on his or her lover. The harmed spouse will have to produce evidence in support of his or her claim regarding how much his or her cheating spouse spent on the affair.

In regard to spousal support, if the adulterous spouse moves in with his or her new partner during the divorce, or anytime after, it can have a direct impact on whether he or she will receive or continue receiving spousal support. A judge will award spousal support based on the financial needs of one spouse and the ability of the other spouse to pay it. If the cheating spouse begins to cohabitate with their new partner, his or her need for spousal support will decrease. A judge can award less spousal support if this occurs.

Finally, because child custody is based on what is in the best interest of the child, a spouse’s adultery usually does not impact a parent’s visitation/custodial rights. The infidelity would have to have a tremendous negative impact on the child in such a way as to weigh on his or her fitness as a parent. For example, if an adulterous parent forgets to pick his or her child up from school because he or she is shacking up with his or her lover, then the court may subject him or her to supervised visitations.

Consequences of Committing Adultery in California

There are no direct legal consequences of committing adultery in California. Adultery is not punishable by law or as a tort in California. However, military personnel in California may be court martialed for committing adultery under Article 134 of the Uniform Code of Military Justice. Cheating spouses will likely suffer personal consequences. For example, family, friends, and colleagues may no longer wish to associate with him or her once they find out about the affair. The cheating spouse may also obtain a sexually transmitted disease and transfer it to his or her spouse. Damages resulting from an STD may be consolidated with the divorce settlement.

Adultery and divorce in California can be a stressful combination to handle. A People’s Choice can alleviate the pressure of dealing with a complicated legal system and help you through this difficult time. Contact us for more information on how to file for divorce in California. We can help you prepare and file your marital dissolution for a fraction of the costs an attorney charges. Call 1-800-747-2780 to discuss your matter in confidence.

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By |2018-01-18T15:47:26-07:00August 10th, 2015|Family Law|20 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

20 Comments

  1. Michelle hanson February 27, 2019 at 2:22 am

    I left my lying controlling abusive husband in 2016. I am wanting a divorce the past three months and we live in California. Recently I found emails I took screen shots of, in his email box where he has solicited four plus more prostitutes that he wanted to “host” in my home where my children live. This isn’t normal cheating to me this is a crime in a sense. Would I be wise to bring this up in court for our divorce? In one email the prostitute is saying how good looking my husband is but it’s not him in the email photo it’s my 15 year old sons photo. He States he has no money to help me get off the street as I’ve been homeless since I left but he has money for hookers? Is that a big deal like I think it is?

    • Sandy McCarthy March 1, 2019 at 7:13 am

      I would get something filed with the courts asap and also a motion for payment of support. This does not sound like a healthy situation.

  2. Rodel February 26, 2019 at 10:39 am

    My wife lost my green card and passport when i told her i dont love her anymore due to some personal reasons and that i am in love with someone else. He doesnt allow me to go out of the house. Can she sue me for having an affair with other woman? Can you please help me. I am in california.

    • Sandy McCarthy March 1, 2019 at 7:15 am

      Adultery is not taken into consideration in California divorces, but if a person is spending community funds on that relationship, the court may require the spouse to reimburse the marital estate.Talk to a lawyer for a more in-depth discussion on this issue.

  3. John November 19, 2018 at 10:02 am

    I decided to not sleep in the same house with my wife anymore after 8 years of marriage. But I am still paying rent, supporting our 3 children and stopping by to see our kids and take them out. I told her I was staying with another person and she decided to not let me see my 3 children anymore. Can she keep them away from untill we go to court?

    • Sandy McCarthy December 1, 2018 at 3:33 am

      There are certainly actions that you could take to protect your rights and get temporary visitation with your children if she is refusing to allow them to see you. Give us a call at 800-747-2780

  4. Beatrice Henderson November 1, 2018 at 11:43 am

    In Calif. Can a wife sue alleged husband mistress for alienation of affection charging the woman who broke our marriage.?

    • Sandy McCarthy November 2, 2018 at 7:47 pm

      I do not believe so since California bases divorce on irreconcilable differences. Talk to an attorney for legal advice.

  5. Angel Gabriel October 8, 2018 at 2:23 am

    Hi, my sister has been married to her husband for 30 years already. She found out that he has been cheating her with other men. She was devastated. He obtained a transmittal disease several times already and transferred to her. She is afraid to ask him for a divorce. He always apologizes and promises that he will no do cheat again, but he keeps on cheating with other men. almost every week. She doesn’t know what to do. Can she get any compensation for those 3 times that he gave her an STD disease and putting her health, even her life in danger.? would she be able to get spousal support if she is disabled?

    • Sandy McCarthy October 9, 2018 at 6:59 am

      Unfortunately because we are NOT attorneys, we are unable to answer these kinds of questions as answering them would be considered giving legal advice. Many attorneys in this area of law offer a free consultation so I would try talking advantage of that option.

  6. Shanice Young August 10, 2018 at 3:16 pm

    I came to my husband with the option of legal separation and he agreed at first but soon got up and abandoned me with the rent with the name on the lease when he realized I was serious. He demanded that I take him off the lease. He took multiple items that was brought during the marriage. And won’t answer any of my attempts to reach out so we can get the divorce. Is any of this legal ?

    • Sandy McCarthy August 11, 2018 at 9:30 pm

      Our office cannot advise you on the “legality” of your spouse’s actions. You may want to contact an attorney for legal advice.

  7. Vincent July 5, 2018 at 2:41 am

    My brother is very nice and honest person.he marry a divorce woman with one kid from over sea and when she got here he didn’t know what she plan to do with him until she get everything,like permanent resident,driving license, make him buy her a car,house,jewelry and she left him with another man this is in San Diego,ca but he just don’t know the law what to do when his wife as for a divorce and make him pay child support in this case can he file a lawsuit against her

    • Sandy McCarthy July 6, 2018 at 7:51 am

      Child support is only payable by the real father, not a stepfather (unless the child was adopted). If the child is not their child together there would not be an order for support. If he thinks his wife defrauded him, he may want to seek an annaulment on the basis of fraud. As far a lawsuit, he would need to talk to an attorney because that would typically be addressed in the family law case.

  8. Colton S May 22, 2018 at 9:49 pm

    My gf is going through a divorce and I moved in with her. Custody has already been settled and they are still working on agreeing on child/spousal support (she will def be the one paying) can me living with her have an effect on custody and how much she would have to pay? She doesn’t spend money on me and I’m a normal guy with a squeaky clean record.

    • Sandy McCarthy May 23, 2018 at 11:40 am

      The income of a live-in boyfriend or even a new spouse is generally not included in calculations of support.

  9. Ludy May 2, 2018 at 4:12 pm

    Hi, i am married and will divorce this year. My marriage last only 4 years. I purchase my home before getting married will i have to divide this property with my husband?

    • Sandy McCarthy May 4, 2018 at 8:23 pm

      We do not give legal
      advice.

  10. Cheryle Sechman April 29, 2018 at 5:33 am

    I was married for 39years my husband abandoned me for the woman he was having affair with. I was the primary source of financial support for 25 years Is he entitled to half of the assets when he did not contribute financially equally to the marriage

    • Sandy McCarthy May 1, 2018 at 3:10 am

      If you live in California most likely that is the case. California is a community property state. Perhaps you can both come to an agreement that would be more favorable to you as compared to what a court might award. Contact us if you need help with your divorce paperwork.

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