Adultery and the Law: An Overview
Adultery, by definition, typically refers to voluntary sexual intercourse between a married person and someone other than his/her spouse. While adultery is often strongly stigmatized and viewed as morally unacceptable in many cultures, the legal system in California does not maintain a moralistic view of the practice or the practice of divorce. In fact, California’s no-fault divorce system virtually eliminates the consequences of having an extramarital affair from the dissolution of marriage process. In other words, the presence of infidelity is typically not sufficient on its own to merit a divorce on the grounds of the relationship being irreconcilably broken.
As discussed in California Family Code Section 2310, the grounds for legal divorce are that either spouse "become[s] 3 years of continuous separation, or incurable insanity, […]" Essentially, the California divorce process does not take into consideration the reasons people have for seeking to dissolve their marriage. At the same time, demonstrating a lack of sexual fidelity may affect the property division process through the concept of community property . When a couple shares income earned during their marriage, that money belongs to the "community" and is subject to division in the divorce process. However, if one spouse is able to prove adultery occurred (anywhere from online appearances to a full-blown affair) so that the other spouse was as well, for example, cheating spouses would then be considered to have been using community funds for their extramarital affairs and could potentially be denied half of their share of community income. While prenuptial agreements often specify how marital income is to be divided in the instance of a dissolution of marriage, there are limits on how a court may divide assets (be they marital or separate properties) so that both parties to the marriage (and custody holders to the children) are protected financially from the dissolution process.
In addition to affecting property division, adultery may also affect custody arrangements, particularly if there is a risk the cheating spouse was dishonest with the other spouse about his/her whereabouts when looking after the children or even, in egregious cases, if the illicit partner has been known to have met with the success’ children or the success actively introduces the children to the illicit partner.
Adultery and California Divorce
California is a no-fault state, meaning that you don’t have to prove that your spouse cheated in order to initiate divorce proceedings. Instead, you can file for divorce on either the grounds of irreconcilable differences or of legal separation.
Because of California’s no-fault divorce laws, adultery will not impact asset division or alimony. California law does not permit courts to punish one spouse for the behavior of the other. Even if your spouse did cheat on you, his or her actions are not grounds for conducting a highly lopsided asset division. Adultery will not affect custody orders either, except in certain situations, such as if the parent who was unfaithful tries to schedule them while the children are at home. Otherwise, adultery generally has no role in impacting divorce proceedings in California.
The judge will not ask you whether your spouse cheated on you when determining custody, alimony, and asset division. However, if you divorce in California, that means that you will be able to move on with your life post-divorce.
Adultery in California Child Custody Considerations
One of the most common questions we get is whether adultery affects child custody in California. Adultery can be damaging to your divorce case, especially if your spouse has been caught cheating in front of the kids. However, adultery usually does not affect child custody or child support, especially if the affair has passed or no longer affects the children. To some extent, it doesn’t matter if you cheated or whether you knew that your spouse was cheating. Legal counsel from our Los Angeles divorce lawyers can help you understand the court’s decisions in your case.
California courts make child custody decisions in the "best interests of the child," considering a variety of factors that focus mainly on your relationship with your child. For example, the following factors are considered when the judge is deciding:
A parent’s sexual infidelity generally does not have any negative impact on child custody or visitation. Courts infer that the child is less affected by adultery between parents.
Generally, adultery will not in itself cause the court to deprive a parent of custody or reduce visitation rights. The "illicit" activity could negatively affect the best interests of the child if the court finds any of the following:
The court will also consider the effect of adultery on the family home. Usually, infidelity leading to the divorce will not negatively impact property division because the court can determine how the property should be divided.
In most divorce cases, infidelity will not affect a spousal support determination either. Adultery can still impact the outcome, but only under certain circumstances. For example, if you give up your job to take care of the kids at home while your spouse cheats can present and impact.
Emotional Distress Claims and Adultery
When an adulterous relationship causes emotional trauma, a victim of that relationship may seek to hold the perpetrator financially responsible for their pain through a civil lawsuit. In the past, the courts of California permitted these motivations to factor into the courthouse’s decision of whether to issue a divorce. If a spouse engaged in a long-term extramarital relationship, that development could be grounds for dissolution. However, due to changes in legal interpretations and evolving public sentiment regarding these issues, courts mostly consider individual’s right to privacy when deciding whether to capitalize on adultery. Today, the presence of adultery in marriages still can affect divorce settlements, but generally only when one spouse loses all semblance of marital devotion.
Even though it is nearly impossible to win an adultery-based legal action for divorce, a victim of adultery can sue the perpetrator of the affair and the person with whom the perpetrator became involved for emotional distress and invasion of affection. Emotional distress and alienation of affection are two civil causes of action that fall under the general category of intentional torts. An intentional tort is an act that can lay grounds for a civil cause of action if it inflicts personal or emotional harm on another person. In the case of adultery , intentional torts apply because the perpetrator of the affair is known to have committed intentional acts that caused the emotional distress in the other husband or wife.
Emotional distress claims pertaining to adultery require that the plaintiff – the person suing the other party – prove that the other spouse intentionally engaged in actions with the purpose of harming him or her emotionally. Generally, if a husband leaves his wife for another woman, if he knows or reasonably understands that she will become emotionally traumatized by the separation, then there exists a likely claim against him for emotional distress. In California, though, the threshold for proving this cause of action requires a plaintiff to prove that the perpetrator of the adultery engaged in a reckless act with complete disregard for the plaintiff’s emotional well-being.
Alienation of affection claims require that the plaintiff demonstrate the defendant participated in actions that precipitated the disintegration of the marital bond. Thus, if one spouse engages in incessant adulterous behavior and then leaves his or her spouse, that spouse has the potential to file a civil lawsuit for alienation of affection. So, while no cause of action exists for adultry. . . .
Adultery and Public Perception
The societal norms and perceptions around adultery have undergone a radical transformation over the past few decades. Historically, adultery was heavily stigmatized, often resulting in harsh legal and social penalties for offending parties. However, in contemporary California, the ramifications for adultery are significantly softer, largely due to a growing emphasis on individual rights and freedoms over traditional communal values.
In the 21st century, public opinion towards adultery in California is generally nonchalant, if not tolerant. Many view adultery primarily through the lens of personal choice and responsibility, rather than a legally or morally reprehensible act. While some still uphold storied cultural views on the sanctity of marriage, the fallout from infidelity has largely become a matter for the individuals directly involved to sort out.
California courts reflect this public sentiment, treating adultery as an unflattering character trait rather than a cause for criminal or even moral penalties. Adultery is considered relevant mainly in the context of custody arrangements or the equitable division of community property. However, even in cases concerning the division of community property, adultery is seldom viewed as grounds for punitive action. The state does not allow for the "alienation of affection" or "criminal conversation" actions, both of which would have enabled a person to sue a spouse’s lover for damages and even criminal penalties. This is largely because California is a no-fault "community property" state, and adultery has no effect on one’s share of the community property.
While adultery may have serious implications in a divorce case, it is not advisable to put energy into proving its occurrence. Instead of focusing on adultery, your efforts would be better directed towards the financial aspects of the divorce. A lawyer can help you identify shared assets and debts, how they were accumulated, and recommend the best way to equitably divide them. Factors such as each spouse’s income, future earning capacity, state of health, and the duration of the marriage will all play an important role in this process.
Adultery may be extremely painful for emotional and relational reasons, but it is unlikely to result in more than a temporary, damaging blow to the marital relationship. With the right approaches to healing, the emotional effects of infidelities can be effectively addressed. However, the financial choices made during the divorce will have long-term consequences, making this the area to direct your energy during litigation.
Preserve Your Rights and Interests
If you have been a victim of adultery by your spouse or partner, there are several steps you can take to protect your rights and interests. A key step is obtaining legal counseling from a family law attorney, which will help you formulate a plan going forward with clearly defined actions. In some cases, it may be desirable to cease communications with your spouse and separate your finances to the extent possible . It is also essential to gather evidence, including photos and written communications. The latter should be preserved in a safe place. Your attorney, Ashley G. Deacon, would be glad to explain to you the variety of ways an experienced attorney can gather and use evidence in a courtroom during a divorce proceeding.