How Does Adultery Affect a Divorce in California?

Since California is a no-fault state, does that mean that adultery does not affect divorce? Unfortunately, that is a common misconception. Below, we discuss what adultery actually means in context of a family law case, and how adultery affects a divorce.

What Is Adultery in the Context of a Divorce Case?

Adultery (also called cheating or infidelity) has different meanings to many different people. For instance, some may believe that having an intimate emotional attachment to someone outside a marriage is considered cheating. Others may define adultery as having sexual intercourse with someone other than their spouse.

For the purpose of this article, we will discuss adultery as as an extramarital relationship that is sexual or intimate in nature. This definition includes one-on-one extra martial relationships, dating relationships with more than one person, and paid sexual services.

How Does Adultery Affect a Spouse’s Trust?

Trust is essential for long-term relationships. Once that trust is broken, it is very difficult to regain. Adultery typically impacts a spouse’s trust significantly. In fact, it is one of the most common reasons couples break up.

Once a person loses their trust in their spouse, that sentiment can ripple through the entire divorce process. A person may feel that if their spouse could conceal their cheating, what else could they be hiding? This could make solving other issues in the divorce very complicated.

In addition, adultery also significantly impacts the emotional aspect of divorce. This can often result in poor judgement and lashing out in ways a person may not normally. Both will only further complicate the divorce process.

An experienced divorce attorney understands how these complex emotions can impact decision-making in a divorce.

How Does Adultery Affect Both Spouse’s Fiduciary Duties?

You may be surprised to learn that California law does consider both spouse’s fiduciary duties to one another. In addition, the law also requires a high duty of fair dealing and good faith.

A Hypothetical Situation

To understand how adultery affects both spouse’s fiduciary duties, let’s consider the following example:

A husband commits adultery with one extramarital relationship over the course of several years. The wife suspects the relationship, but can never fully prove it. Eventually, she gathers enough evidence to prove it, so she files for divorce.

With the above example, we want to know the following:

  1. How long did the adultery last? In this case, let’s say for three years.
  2. How much money was spent on the extra marital relationship? For our example, let’s say the husband spent about $30,000 per year. So for three years that would amount to $90,000 in total. The husband’s annual income is $400,000, and his wife is a homemaker.

Did the Husband Breach His Fiduciary Duty?

Since each spouse is a fiduciary to one another, does money spent on an extra marital affair help the community?

Logically, the answer is no. However, did that husband breach his fiduciary duty to his wife? Maybe.

These types of issues are not black and white. No section in California Family Code states that a spouse guilty of adultery must pay their spouse 50% of the money they spent on an affair. Yet, because of both spouse’s fiduciary duty, when community funds are spent, one can argue that adultery can and should lead to reimbursement from one spouse to the other.

How Does Adultery Affect a Divorce When Child Custody Is Involved?

Just because one parent commits adultery does not mean they are unfit to parent children. Most often, adultery does not demonstrate a person’s ability to parent.

However, things are more complicated if the adulterous parent engaged in prostitution or other illegal activities. Committing such acts could potentially expose children to dangerous individuals or situations. If such acts were committed, then the court should take them into consideration when determining child custody.

Speak to an Experienced Fresno Divorce Lawyer

How does adultery affect a divorce? In many ways — whether the fallout is from emotional instability, a breach in fiduciary duty, or potential exposure of children to illegal activity. If you’re going through a divorce that involves adultery, we can provide compassionate and knowledgeable counsel. Consult a Fresno divorce attorney at the Law Offices of Rick D. Banks today.