Adultery in California: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in California.

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.

What Role Does Adultery Play in a California Divorce?

California is a no-fault divorce state. You can get divorced for one of two possible reasons:

  • your spouse suffers from incurable insanity, or
  • irreconcilable differences (meaning, fundamental disagreements) between you and your spouse have so badly damaged your relationship that you can't save it. (Cal. Fam. Code § 2310.)

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.

What Is Alimony in California?

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:

  • The judge may conclude that the evidence doesn't support an award of alimony and deny it altogether.
  • If the court decides that alimony is warranted, the judge will award it in an amount and for a duration that is just and reasonable, meaning that it should be fair, rational, and fit the facts of the case.
  • The judge may tie the final alimony award to the length of the marriage. For example, if the marriage was very short, the judge may award only a little alimony for a short amount of time. If a marriage lasted for a long time, alimony could last for much longer, and the judge may order the paying spouse to pay a more considerable sum of money.

Click here for more information on alimony in California.

How Does Adultery Affect Alimony Awards in California?

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:

  • the extent to which each spouse's earning capacity is sufficient to maintain the standard of living established during the marriage, including (1) the marketable skills of the receiving spouse, the job market for those skills, the time and expenses required for the receiving spouse to acquire enough education or training to develop marketable skills, and the possible need to re-train or re-educate the receiving spouse to enable that spouse to acquire other marketable skills or employment, and (2) whether and how much the receiving spouse's present or future earning capacity has been harmed by periods of unemployment during the marriage, when the receiving spouse was devoting time to domestic duties
  • the extent to which the receiving spouse contributed to the paying spouse's education, training, a career position, or licensure
  • the paying spouse's ability to pay alimony, taking into account the paying spouse's earning capacity, earned and unearned (potential) income, assets, and standard of living
  • each spouse's needs, based on the standard of living established during the marriage
  • debts and assets, including each spouse's separate (nonmarital) property
  • the length of the marriage
  • if the receiving spouse has custody of any children, the ability of the receiving spouse to be gainfully employed without interfering with those children's needs
  • the age and health of the spouses
  • documented evidence of any history of domestic violence between the spouses, including emotional distress resulting from the incidents and any history of violence by the paying spouse against the receiving spouse
  • the immediate and specific tax consequences to each spouse
  • the balance of the hardships to each spouse
  • the goal that the receiving spouse be self-supporting within a reasonable period of time, except that in the case of a long-term marriage, the receiving spouse has one-half the length of the marriage to become self-supporting
  • the court must consider an abusive spouse's criminal convictions when making a reduction or elimination of a spousal support award, and
  • any other factors the court thinks are just and equitable (fair and reasonable). (Cal. Fam. Code § 4320.)

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.)

Resources

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.

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