If you're facing the end of your marriage because you or your spouse had an extramarital affair, you might be wondering whether how the infidelity could affect your divorce. It's natural to want to punish a spouse who has cheated on you. As a rule, however, you won't be able to do that as part of your divorce in California.
Historically, if you wanted a divorce, you had to prove that your spouse was guilty of some kind of wrongdoing. And adultery was usually at the top of the list of misconduct that could be a "ground" (legal reason) for divorce.
Some states still allow you to file for divorce based on your spouse's adultery. But not in California. In fact, it was the first state in the U.S. to get rid of fault-based divorce more than 50 years ago. The only grounds for divorce (or "dissolution of marriage") in California are:
Of course, adultery is one of the most common reasons that marriages end in divorce. And unless you and your spouse can work through the emotional repercussions of an extramarital affair (or you had an open marriage to start with), infidelity can certainly play a central role in leading to the permanent breakdown of your marriage. But it isn't a legal reason for dissolution of marriage in California. That means there's no need to prove or disprove that the affair took place in your divorce case.
In some states, the law specifically allows judges to consider one spouse's adultery when they're deciding whether to award alimony (spousal support). That's not the case in California.
When deciding whether to award spousal support in California—as well as how much and for how long—judges must consider a long list of factors spelled out in the law. Most of those factors relate directly to one spouse's need for support and the other spouse's ability to pay. The list does not include adultery, although it does end with a catch-all item: Judges may consider any other factors they believe would be "just and equitable" (basically, fair). (Cal. Fam. Code § 4320 (2022).)
Still, because spousal support is based on need and ability to pay, it's highly unlikely that evidence of adultery would affect an alimony award under current California law. Except when one spouse is guilty of domestic violence, alimony isn't meant to punish spouses for their behavior.
As with spousal support, adultery shouldn't affect judges' decisions on other issues in a California divorce—although there might be some circumstances when a spouse's behavior related to the extramarital affair could impact parenting time.
California is a community property state, and its rules on property division in divorce are strict: Unless the spouses agree otherwise, the judge must divide a couple's community property and debts equally. Judges may decide how to effect a 50-50 split in value, but nothing in the law allows them to divide the community property unequally based on circumstances in the case. (Cal. Fam. Code § 2550 (2022).)
So unless your straying spouse—out of guilt—signs a divorce settlement agreement giving you more than half of the community property, adultery shouldn't be a factor in the property division in your California divorce.
Decisions about child custody in California, as in all states, must be based on what would be in the children's best interests. Judges may consider a parent's conduct, but only to the extent that it affects the child's health, safety, and general welfare. For instance, the law specifically allows judges to consider a parent's child abuse, domestic violence, or drug or alcohol abuse. (Cal. Fam. Code § 3011 (2022).)
Ordinarily, the focus on the child's best interests means that a parent's adultery won't affect a judge's decision about parenting time and where the child will live most of the time. The mere fact that a married person has had an affair doesn't mean that person can't be a good parent. However, a judge could conceivably consider the circumstances around a parent's adultery if it endangered the child's well-being—for instance, if the parent's extramarital relationship involved abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.
Child support in California is calculated under a complicated formula spelled out in the state's child support guidelines. The formula is based primarily parents' incomes and parenting time, the number of children being supported, and certain additional expenses. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play any role in determining which of them will pay support or the amount of the payments.
Adultery isn't a crime in California. As a result, the state's laws don't have a legal definition of the term. But adultery is generally understood as a married person's sexual relationship with someone other than that person's spouse.
Many people find it devastating to learn that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that using the divorce proceedings to punish your spouse is never a good idea. It will make the entire process more stressful, for you as well as your kids. Also, fighting over unrelated issues because of your residual anger is bound to increase the cost of divorce.
If at all possible, try to separate the emotional issues resulting from your sense of betrayal from the practical and legal issues in your divorce. While you're taking steps to rebuild your life after divorce, do what you can to ensure that the divorce itself will be as smooth as possible.
If you can cooperate with your spouse enough to work out a divorce settlement agreement, you'll be able to get an uncontested divorce in California—which is always quicker, easier, and cheaper than a traditional contested divorce. And if you need help resolving your disagreements, you can try divorce mediation. With an agreement, you can probably get a DIY divorce, either on your own or by using an online divorce service.
But if you're the one who went outside of the marriage for physical intimacy, you might find yourself dealing with a spouse who simply won't let it go and insists on a drawn-out legal battle over every issue in your divorce. When that's the case, you should speak with an experienced family law attorney to learn what you can do to protect your interests.