It happens so often it's almost become a cliché: a couple meets, falls in love, and marries. All is well until one spouse discovers that the other has a lover on the side. The marriage ends in divorce—a spectacularly painful disaster for everyone involved. If your marriage is about to end because of infidelity, you understand all too well how it feels. But you can seize the initiative by learning some basic information about your legal rights and responsibilities in the upcoming divorce.
This article will explain the possible impact of adultery on divorce in California and cover whether a court will consider the affair when making alimony decisions. If you have any questions after reading this article, you should speak with an experienced family law attorney for advice.
California is a no-fault divorce state. You can get divorced for one of two possible reasons:
You won't have to go to court to testify about why your marriage failed. To the court, the only thing that matters is that you or your spouse (or both of you) believe that you can't save your marriage. No-fault divorce speeds emotional healing and courtroom processes by preventing spouses from arguing too much about the inevitable.
No-fault divorce represents a modern approach to family law. Other states, known as fault-based states, are more traditional and still allow the issue of who's at fault for the divorce.
In a fault-based state, the judge will grant the divorce because of wrongful marital conduct and list it in the final divorce papers. The papers might even specify who is at fault. Common grounds (reasons) for divorce in fault-based states include abandonment, domestic violence, chemical dependency, and, of course, adultery.
Many states have made adultery illegal, and their criminal laws contain definitions of adultery. California has not made adultery a criminal act, so there's no official state definition of adultery. However, most legal experts agree that adultery occurs when a married person has a sexual relationship with someone who isn't the other spouse.
In a purely no-fault divorce state, like California, the court will not consider evidence of adultery, or any other kind of fault, when deciding whether to grant a divorce. It only matters that the marriage failed; it doesn't matter who did what or why. However, if your spouse was unfaithful in your marriage, the court may consider the misconduct in other aspects of the divorce.
In California, alimony is referred to more commonly spousal support. Alimony is the money that one spouse pays to the other spouse both during and after a divorce. California's legislature believes that the duty of support is so critical that it created a law that requires spouses to provide financial support for each other. (Cal. Fam. Code § 4300.)
The purpose of alimony is to ensure that the divorce doesn't render the poorer spouse destitute and that there aren't major differences in the spouses' respective standards of living after the divorce.
The court can issue an alimony order while the divorce proceedings are underway but still incomplete. The receiving spouse can ask the court to issue a temporary order, which will only last until the final order is issued. The temporary order might award alimony to the receiving spouse, but the final order will replace the temporary obligation when the divorce is over.
The final alimony order can take a number of different forms:
Judges have some leeway in deciding whether to award alimony and the amount and duration of the award. Still, the law is clear that a judge's decision must be fair and reasonable to both spouses. The receiving spouse must show a need for the alimony, and the paying spouse has to have the ability to pay it.
Also, judges must analyze all of the following factors, which can be weighted as the court sees fit:
You may have noticed that adultery and other forms of marital misconduct are not included in this list of factors. That's because, generally speaking, judges aren't allowed to consider marital misconduct when making decisions about alimony. The purpose of alimony is to make sure that neither spouse falls into poverty when the marriage ends. The purpose of alimony is not to punish spouses for bad conduct while they were married.
There's one exception to this rule. When a spouse has behaved violently in the marriage and been convicted for abusive behavior, then the judge has the power to reduce or even eliminate any alimony that the abusive spouse would otherwise be entitled to receive. (Cal. Fam. Code § 4324.5.)
If you have questions about your divorce case and how your spouse's infidelity will impact it, contact an experienced family law attorney near you.
For more information on divorce or separation in California, visit the Judicial Branch of California Online Self-Help Law Center. If you're thinking of filing for divorce without an attorney, you can find official court forms on the California Court website.