Does Infidelity Matter in California Divorce?

Married couples get divorced for many reasons. For some, it’s due to financial stress. For others, it’s a tragic event (e.g., the death of a child). And for many others, it’s infidelity. One of the most common assumptions in family law is that infidelity can influence the outcome of divorce. Many spouses often assume that an unfaithful spouse will lose more, pay more, or otherwise be punished in some way. However, infidelity rarely has a substantial legal impact on divorce. Of course, there are always exceptions, as our Stockton divorce attorneys explain below. 

Why Cheating (Usually) Doesn’t Matter 

California is a no-fault divorce jurisdiction, meaning there is no need for the spouse seeking a divorce to prove fault on the part of the other spouse. Instead, California couples need only show either irreconcilable differences or permanent legal incapacity to make decisions. Under the “irreconcilable differences” framework, courts do not investigate who “caused” the divorce, and there is no legal penalty tied to proving infidelity. In short, California family law courts are not concerned with assigning moral blame; rather, they are concerned only with dividing property, setting alimony and child support, and addressing the welfare of children. 

When Cheating Can Matter

It’s rare that infidelity by one (or both) spouses has any effect on divorce. However, as with most areas of law, there are a few exceptions to that general rule. Generally, infidelity becomes relevant in divorce proceedings to the extent that it affects the couple’s finances or the health, safety, or welfare of their children. If you think that might be the case for you, please consider speaking with a Stockton divorce attorney. 

Alimony 

Alimony is where the assumption that infidelity has an effect on divorce is perhaps most pronounced. After all, it’s not unreasonable to assume that a spouse who is unfaithful would receive less (if any) alimony than a spouse who is faithful. But that’s not how the law works in California. Alimony is based on statutory factors that aim to balance each spouse’s need versus each spouse’s ability to pay, and infidelity is not a factor courts consider. Generally, infidelity affects alimony only insofar as the cheating spouse used spent marital funds on the affair. In some cases, courts may consider an unfaithful spouse who moves in with their new partner to have a reduced need for alimony due to support from the new partner. For more information about how infidelity can (and can’t) affect alimony, please contact a Stockton divorce attorney. 

Property Division 

California is a community-property state in which all assets and debts acquired during the marriage are divided 50/50 upon divorce. Infidelity does not change the 50/50 division rule. A spouse does not receive more or less property in property division simply because the other spouse was unfaithful. However, infidelity can affect property division if the affair involved financial misconduct, such as using community funds to support the extramarital relationship. This can include: 

• Hotel stays or vacations with the extramarital partner
• Gifts or financial support to the extramarital partner
• Secret expenditures from joint accounts 

If the non-offending spouse can show financial misconduct by the unfaithful spouse, courts may award the non-offending spouse a reimbursement credit for misappropriated funds before dividing the remaining community property. 

Prenuptial Agreements

Because California is a community-property jurisdiction, many couples choose to contract around the 50/50 rule by executing prenuptial agreements that more accurately reflect their wishes than the default rule does. And while many couples who execute prenuptial agreements choose to include “infidelity clauses” that punish unfaithful spouses, such clauses generally are unenforceable. California family law courts are loath to enforce contractual provisions governing personal conduct, and thus typically enforce prenuptial agreements only to the extent they concern financial matters.

Child Custody 

Custody decisions in California divorces are governed exclusively by the best interests of the child — not by marital fault or any other behavior unrelated to parenting. However, infidelity may become relevant to child custody if it has a tangible effect on the offending spouse’s ability to parent or the child’s well-being. This could be the case, for example, where: 

• A parent exposes the child to inappropriate individuals
• A parent neglects their caregiving responsibilities due to an ongoing relationship
• The child is placed in an environment that would expose him or her to substance abuse tied to the new partner

And while cheating alone is not a factor courts consider when determining custody, disputes arising from infidelity can escalate into conduct that could become relevant, as California family law creates a rebuttable presumption against awarding custody to a parent who has committed domestic violence. This could arise, for example, where a confrontation with a spouse or new partner becomes physically violent. For more information about showing that infidelity could adversely affect the best interests of your child, please speak to a Stockton divorce attorney. 

Litigation Misconduct 

Conduct surrounding an affair can also have ramifications during the divorce process, particularly where such behavior influences a party’s disclosure obligations during litigation. One of the first and most important steps in the divorce process is the legal requirement that each party provide the other party with a full and accurate disclosure of their assets and liabilities. If the infidelity has not come to light by this point, the unfaithful spouse may continue to attempt to hide it by failing to fully disclose their finances, such as by destroying or altering financial records to hide spending on the fair. Failure to comply with disclosure obligations can result in monetary sanctions, awards of attorneys’ fees, and adverse inferences in property division. 

Speak to a Stockton Divorce Attorney to Determine Whether Infidelity May Affect Your Divorce 

While infidelity typically does not have major ramifications for divorce, it can, in some instances, and the best way to determine whether it may play a role in your divorce is to speak to an experienced attorney. For more information, please contact a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau using our online form or by calling 209-477-8171.