Infidelity can break couples apart

Of course, some couples are able to stay married and even rebuild trust. Many cannot. Our purpose in this blog is not to influence the “should” question, but to provide a foundation of what to expect if you are considering a divorce after infidelity.


Is infidelity/an affair grounds for divorce?

California is a no-fault divorce state. Infidelity certainly stimulates many divorce proceedings, but from a legal standpoint, it is no more and no less grounds for divorce above any other reason. The petition used to initiate a divorce proceeding (Form FL-100: “Petition – Marriage / Domestic Partnership”) does not provide “infidelity” as an option for declaring the legal grounds for the divorce. Any spouse, whether cheated on or not, need only say they have “irreconcilable differences” with their spouse.


Does infidelity affect divorce?

In the State of California, committing adultery is not illegal. Faithful spouses often expect that their divorce proceedings will favor them because their spouse broke the marriage, and therefore they are innocent victims and deserve justice. Before the law, however, no crime occurred. Thus, the spouse’s infidelity may not affect the final divorce settlement in any major way. Here are a few ways it may have an affect:


Spousal support. California does not mandate alimony, though at times it is ordered if the economic circumstances of each spouse warrants it. It is not a punitive measure: the mere fact of adultery by one spouse will not, by itself, impact whether or for how much spousal support will be awarded.


A spouse who would otherwise qualify for spousal support may become disqualified if their affair resulted in a more favorable economic situation for them. For instance, if they moved in with their new partner, they may be enjoying a lifestyle similar to what they had with their spouse, and the judge will not order alimony. Notice, though, that only the economics of the situation factor in the decision; their infidelity does not. 


Division of assets. California is a “community property” state, meaning that all marital assets and liabilities obtained during the time of marriage, with some exceptions, are subject to being equitably distributed 50-50 to each spouse when they divorce. If, however, the cheating spouse used marital assets to fund their affairs (called “dissipation”), the victim spouse is entitled to reimbursement of their share of those expenses (50%) on top of the remaining estate they receive.

This policy may be difficult to pursue practically. Unless the cheating spouse is forthcoming with all of their expenditures and volunteers to reimburse them, the victim spouse will need to hire forensic accountants to comb through bank and credit card statements to discover what may have been spent on the affair. This is an expensive process, and the result may yield a sum that is less than the forensic accountant’s fees. For that reason, a knowledgeable divorce attorney should be consulted first. They will likely advise pursuing this route only if there is already strong evidence that the dissipation of marital assets was significant (e.g., luxury vacations, rent or mortgage payments made for the affair partner, cars or other expensive items, etc.).


Child custody. Family law in California is biased toward awarding joint custody to both parents. An obvious exception to this bias is if one of the spouses has routinely engaged in illegal activity. However, adultery is not illegal, so it may not be considered in custody decisions.  


Examples of where infidelity would be a factor in child custody is if the sexual activity of the affair was conducted in the presence of the children, causing them mental or emotional trauma. Or, if the unfaithful spouse intends to move in with their new partner, the courts will analyze whether that new home will have an impact on the children’s health and welfare: Is the new partner abusive in nature? Do they have addictions to controlled substances?


The best interests of any children is always considered. Being unfaithful in a marriage is not an automatic indicator that the parent is unfit to care for their child.


Navigating a divorce due to infidelity.

The legal impact of infidelity on divorce is unique to each case. But each case does share the mental and emotional strain caused by the affair during the court process. That’s why having professional, experienced attorneys guide you through the process is paramount to the best possible outcome.

Our team of divorce attorneys at the family law firm of Silva & Associates has helped many clients work through the complex issues attached to a divorce due to infidelity. We can help you, too. Contact us today, and let us work with you to come to a positive resolution.