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 this 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 a divorce in California and cover whether a court will consider the affair when making decisions about alimony. If you have any questions after you read 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 that can't be resolved) between you and your spouse have so badly damaged your relationship that it can't be saved.

You won't have to go to court to testify about why your marriage failed. The only thing that matters is that you or your spouse (or both of you) believe that your marriage can't be saved. 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 to be litigated. In a fault-based state, the divorce papers will say that the divorce was granted because of wrongful marital conduct. The papers might even specify who is at fault. Common grounds (reasons) for divorce in fault-based states include abandonment, abuse, 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. Most legal experts, however, agree that adultery occurs when a married person has a sexual relationship with someone who isn't the other spouse.

The courts 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. If there has been adultery in your marriage and you're concerned that it might have an impact on other aspects of your divorce, you should talk with a family law attorney.

What is Alimony in California?

Alimony is technically referred to as spousal support in California's laws. 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.

The purpose of alimony is to ensure that the poorer spouse isn’t rendered destitute when the marriage ends, 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 that obligation will be replaced with whatever the final order says.

The final alimony order can take a number of different forms:

  • The judge may conclude that the evidence does not support an award of alimony and deny it altogether.
  • If the judge decides that alimony is warranted, it will be awarded 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 final alimony award is tied to the length of the marriage. For example, if a 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 will last for much longer and the judge may order more money to be paid.

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. Their decision must be fair and reasonable. The receiving spouse must show a need for the alimony, and the paying spouse has to have the ability to pay it. In addition, 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 at times 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, 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
  • the needs of each spouse based on the standard of living established during the marriage
  • debts and assets, including the separate (nonmarital) property belonging to each spouse
  • 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 the needs of those children
  • 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 criminal convictions of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award, and
  • any other factors the court thinks are just and equitable (fair and reasonable).

You may have noticed that adultery and other forms of marital misconduct weren't mentioned 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 simply to make sure that neither spouse falls into poverty when the marriage ends. Alimony isn't meant 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.


The Judicial Branch of California Online Self-Help Law Center and official court forms

The California Family Code

Cal. Family Code § 2310 (2013)

Cal. Family Code § 2311 (2013)

Cal. Family Code § § 4300—4303 (2013)

Cal. Family Code § 4320 (2013)

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