Divorce can be an extremely emotional and painful experience no matter what the circumstances. Those feelings can be magnified tenfold if the divorce involved infidelity. According to the American Association for Marriage and Family Therapy, in approximately 41 percent of married couples, one or both spouses admit to infidelity, either emotional or physical.
With some of the highest divorce and adultery rates in the country, California is no exception. The family law attorneys at The Law Offices of Bamieh & De Smeth, PLC can alleviate the pressure of dealing with California’s complex legal system during this sensitive time. We have decades of family law experience, including hundreds of difficult divorces. We have the right combination of sensitivity and aggression to handle your most important matters. Call our law offices right away at (805) 585-5056 for a free consultation.
Will Adultery Get Me a Divorce?
We all have our own ideas about what constitutes cheating, but is there a legal definition for it? In many jurisdictions, adultery is defined as voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse. It’s generally viewed as an offense that injures public morals and a mistreatment of the marital relationship, but not necessarily as a crime. Previously, all states had legislature that criminalized adultery; some still do, but they’re rarely enforced.
Because states have a compelling public policy interest in protecting the sanctity of marital relationships, all states also previously had legislature that allowed adultery to be used as a ground for divorce. However, in 1970, California became the first state to implement the concept of no-fault divorce. No-fault divorce essentially eliminated the need for the filing spouse to prove fault on the part of the other spouse. All the filing spouse has to do is give any reason that the state honors for the divorce. In California, these reasons are: your marriage is irretrievably broken, or your spouse is incurably insane.
So, in short, adultery on the part of your spouse won’t technically get you a divorce in California. Courts won’t actually consider evidence of adultery when deciding whether to grant a divorce, but this same evidence would almost certainly allow you to check the “irretrievably broken” box on your divorce petition. Adultery does play a role in many issues that go hand in hand with divorce, however, like property distribution, spousal support, and even child custody.
Will Adultery Affect a Divorce Settlement?
California is a community property state. This means that any property acquired by either spouse during the marriage becomes joint property even if it was originally acquired in the name of only one partner. Each spouse or partner acquire a one-half interest in anything labeled community property. (If you signed a prenuptial agreement, you might want to check to see if you and your spouse agreed to eliminate community property). Here’s where adultery becomes relevant: if your adulterous spouse did something during the course of their infidelity to hurt the value of your marital estate (i.e., spending money on their paramour, hotels, gifts, etc.), they will be held accountable and ordered to reimburse the estate. Unfortunately, a judge in California cannot increase your share of community property just because you were wronged, but he can at least ensure that you don’t get cheated out of anything else.
As far as spousal support, judges have an extensive list of factors to consider when determining whether to grant alimony. Unfortunately, adultery isn’t among them. If you find yourself in the shoes of the obligor spouse, there may be some reprieve for you. If the spouse receiving alimony begins cohabitating with their new partner, a California judge may order a decease in support.
Child custody is much less effected by whether one spouse is found to have committed adultery. However, the ultimate standard for deciding child custody is whether it is in the best interest of the child. If for some reason a spouse’s infidelity weighed on his fitness as a parent, a judge might have cause to view unfavorably on that spouse.
Do You Have to Prove Adultery?
Since adultery is no longer a ground for divorce in California and doesn’t factor heavily into spousal support payments, it’s not in your best interest to spend a lot of time trying to prove adultery with regard to these issues. However, it is important to consult with a family law attorney about obtaining any evidence that speaks to your spouse hurting the value of your marital estate through their infidelity. An experienced divorced lawyer can help make sure you get your full and complete share of the estate.
California Divorce Attorneys Dealing with Adultery
Adultery and divorce can be a nerve-wracking combination to handle. If you are considering filing for divorce because of an adulterous spouse, you don’t have to suffer the stress, anger, fear, and other negative consequences alone. The Law Offices of Bamieh & De Smeth, PLC are here to help. To schedule a free and confidential consultation with the experienced divorce attorneys concerning your divorce, contact our law offices right away at (805) 585-5056.