How Does Adultery Affect Divorce?

California is a no-fault State. That means adultery does not affect divorce right? That is common misconception. Adultery does affect a divorce in California.

On this page, we will first discuss what adultery really means within the context of the divorce case, and then three common ways adultery affects divorce.

What is adultery within the context of a family law case?

Adultery (also known as infidelity or "cheating" in conversational English) has different meanings to different people.

For example, some people believe that intimate emotional attachments to others is a form of "cheating" and therefore adultery.

Others believe adultery requires actual sexual intercourse with someone who is not their spouse.

Then you have everything in between that, depending on perspective, may or may not be adultery to that person.

For our purposes, we will call adultery an extra marital relationship that is intimate or sexual in nature.

This will include not only a one-on-one extramarital relationship but dating relationships with others, paid sexual services such as prostitutes, or relationships clearly beyond that of a business relationship or a friendship.

You will see as we go along why we draw the distinction and why we treat adultery this way.

How does adultery affect divorce and a spouse's trust?

Trust is difficult to regain once it is lost. Trust is a core value for any long-lasting relationship. Not everyone agrees on what "trust" means. After all, there is such a thing as an open marriage. The trust there is obviously different then a traditional family unit. But really "trust" means the spouses will neither lie nor conceal important information from each other.

Adultery can significantly impact trust. It is one of the main reasons people break up.

The analysis goes something like this - "you cheated, therefore you do not respect me, and if you do not respect me, how can I trust you?"

1. The lost trust ripples through the divorce

This lack of trust can have a rippling effect throughout a divorce.

Think about it for a moment - what is the law's objective of every divorce in the State of California? The answer is resolution.

The goal of every divorce is to resolve the divorce and let the parties go their separate ways reasonably and amicably.

Therefore, just as a breakup occurs due to adultery and the ensuing lack of trust, the law expects the spouses to collaborate in negotiations and resolve the issues. Sound like an emotional challenge, or one that will take some effort? It is.

2. You are not a robot, you have human emotions

It is no wonder so many divorces start off as rocky as the relationship that just ended.

We are not robots or a light-switch where we can simply turn on and turn off our emotions at will. Our hearts unfortunately lead us astray and cause us to say and do things that, in the moment, we do not regret but after some thought, we realize was poor judgment.

Therefore, the first and most probable impact adultery can have on a divorce is to make the entire divorce process harder, longer and more expensive.

3. Start thinking with your head, not your heart

The good news is it does not have to be this way. Through effective therapy and an intelligent and experienced divorce lawyer, you can break through the emotional breakdown from adultery, recover from the breach of trust and make smart, logical decisions.

Handling divorce's complex emotions is such an important part of handling a divorce. Allowing those emotions to wreck your decision-making process only makes a bad situation worse. That is not in your best interest. If you have children, that is certainly not in their best interest.

How does adultery affect divorce and each spouse's fiduciary duties to each other?

You may wonder what I mean by fiduciary duty. It may surprise you to learn California law considers spouses fiduciaries to each other and requires the highest duty of good faith and fair dealing.

Surprised to read this? Many are and that brings us to the second way adultery affects a divorce.

For the sake of our hypothetical below, let us assume the following: the husband is the one who perpetrated adultery. The husband's adultery includes one extramarital relationship with one individual for several years. It was an on-again, off-again relationship. The wife suspected something was going on. But the wife never had clear enough evidence in her mind. Finally, the wife confirmed her husband committed adultery and filed for divorce.

Regardless of who committed adultery, the above scenario happens every day in California. It is the most common form of adultery we hear about.

There are a multitude of reasons the adultery occurs. Who is to blame is irrelevant to our analysis. What we care about is something different.

1. Let's analyze this situation and how this hypothetical adultery affects divorce

We want to know the following:

1. How long has this adultery occurred? Let us assume in our hypothetical it is three years.
2. How much money did the husband spend on this extra marital relationship during the three years? Let us assume in our hypothetical it is approximately $30,000 per year, for 3 years or a total of $90,000. The husband's income is $400,000 per year and the wife is a homemaker.

Did the husband breach his fiduciary duty?

As spouses are fiduciaries to each other, does expenditure of money on an extramarital affair benefit the community?

The logical answer is no. Does that mean the husband breached his fiduciary duty to the wife by secretly spending community property funds such as marital savings and marital earnings on the adulterous affair? The answer is perhaps.

These issues are of course not black-and-white. There is no California Family Code section that says a spouse who commits adultery must reimburse the other spouse 50% of all the money he or she spent on the adulterous affair.

But since there is a fiduciary duty, there is an argument that such adultery, when it involves expenditure of community funds, should lead to a reimbursement of half of those community funds to the other spouse.

You don't have to take a huge leap of logic to get to this point. It is not as simple as, "hey, why should I reimburse her? She spent money on things that I didn't agree to such as the purse I asked her not to buy."

Sure, that $2,000 purse may upset a spouse. However, a purse does not fall into the same category as a secret, adulterous affair where a spouse expended significant community earnings and savings without the other spouse's knowledge or consent. Perhaps if the purse cost $5,000 and the wife then gave it away to her sister, there may be something there to legally complain about.

The key fact is using community property funds

Notice we use the words community property funds. We assume the money used for the adultery was actually community earnings or savings and not that spouse's separate property. Separate property expenditures do significantly change the analysis.

Does it make a difference whether the money spent was for one relationship, multiple dating relationships, use of prostitutes, etc.? Not really from our perspective but there can be reasonable disagreement on this issue.

Again, since these issues are not black-and-white, there are usually arguments on each side. That is why reasonable minds can sometimes disagree.

How does adultery affect divorce with the children?

This factor deals with a divorce that involves children. Just because a parent commits adultery does not mean that parent is unfit to be an equal participating parent in the children's lives. Such a notion is ridiculous. It is possible the adultery has absolutely nothing to do with the father's or mother's ability to parent the children.

But what if that parent frequently paid money to prostitutes and engaged in illegal activity? What if that parent surrounds himself or herself with individuals who are criminal sex offenders?

These are the issues that really matter in a divorce that involves children when there is adultery. If the parent's conduct could potentially expose the children to dangerous individuals, the court should take that into consideration. The children's best interest is the law's overriding consideration.

Anything that impacts the children's best interest and their health, safety, education or general welfare is a relevant consideration.

Are there other ways that adultery affects divorce?

Yes. What we listed here are some of the more common ways adultery can affect divorce.

It is time for forward progress

Adultery does affect divorce. We looked at the emotional and financial fallout from it and how each can impact a spouse's trust and choices as he or she navigates the California divorce process.

You do not have to go through this alone. An experienced therapist can help you with the emotional challenges adultery causes.

Experienced divorce attorneys like those at our firm can provide you with important legal advice and help you make smart choices.

Knowledge is power. Learn more about planning for divorce by visiting our guide linked below.