Divorcing a Cheating Wife in California's No-Fault State

“My wife cheated on me and I want a divorce.” But does the cheating matter?

Does a wife "cheating" on her husband matter in a divorce?

Your wife cheated. That infidelity hurt, even if you suspected it. Now you are divorcing your wife who cheated and you have conflicting emotions.

On the one hand, you want to keep it amicable because you do not want your emotions to get the better of you.

Just because your wife cheated, does not mean your divorce has to be high conflict. However, you want to know if her cheating matters. And if the cheating does matter, how?

We wrote this article for you.

Everything you read in this article is about California law. California is a community property State so this analysis focuses on community property laws. We also discuss child custody issues and support.

Our family law firm has offices in Los Angeles, Orange County and San Diego. We offer an affordable strategy session and have helped hundreds of spouses successfully navigate their divorce.

- B. Robert Farzad

California is a "no fault" State so does my wife's cheating matter?

Most people know California is a no-fault state.

However, most people do not know what that actually means.

A no-fault State means California allows a divorce based on irreconcilable differences and regardless of who was at fault for the divorce.

A no-fault State does not mean misconduct during the marriage is irrelevant in the divorce.

For example...

  • Domestic violence during the marriage can directly affect a divorce issue such as spousal support.
  • Child abuse during the marriage directly affects child custody and therefore child support issues during the divorce.
  • Hiding money or assets during the marriage can directly affect division of those assets during a divorce.

The above are just three examples of how "fault" which is synonymous with misconduct during the marriage directly affects issues spouses deal with in the subsequent divorce. There are more.

What about cheating? Yes, your wife cheating may affect issues in the divorce and we will explain exactly how below.

My wife spent our money on the person with whom she cheated

Husbands and wives are fiduciaries to each other. That means they have the highest duty of loyalty.

However, this duty of loyalty relates to financial transactions between husbands and wives, or transactions with third parties.

"Cheating" by a wife violates the fidelity spouses owe to each other but it is not, by itself, actionable in the divorce case.

Cheating is however actionable if your wife spent community property money or otherwise harmed the community financially by her conduct.

For example, if she spent her income, your income, or marital savings on the person with whom she cheated, she spent community property money, which is half yours.

If this amount is small, it is not worth the time to prosecute it in a divorce case. However, if the amount is significant, and especially if it spans years and tens of thousands of dollars, you should consider pursuing a reimbursement and breach of fiduciary duty claim.

The same is true with assets. If she gifted community property assets to the person with whom she cheated, that is relevant in the divorce. You can seek breach of fiduciary duty claims for that conduct.

If you want to learn more about breach of fiduciary duty claims, we recommend you read our article on this topic. We provide you with that link and others below.

My wife is still with the person with whom she cheated and he is a dangerous character

Husbands sometimes ask me, "How can I trust my wife with the care of our children after she cheated?"

I responded by asking the husband whether the person with whom she cheated is a danger to the children.

Most of the time, they do not know. That is where an investigation may become necessary if there are facts that support this concern.

Child custody decisions focus entirely on a child or children's best interest. Your wife cheating on you is not a fact, by itself, the court will care about.

However, if the person with whom she cheated is a safety danger to the children, the court will care.

You can conduct formal discovery, which includes subpoenas, depositions and/or written questions to find out more about this other person.

If the cheating was isolated and the person with whom your wife cheated is not around the children, this effort will likely be a waste of time and money.

It is only in those situations where this person is a potential danger to the children that you should take the steps to protect the children.

- B. Robert Farzad

The person with whom your wife cheated is a danger to you

What if the person with whom your wife cheated is an actual threat to you?

The person may have physically threatened you or is harassing you. You do have rights. You can seek a civil restraining order against that person if his (or her) conduct rises to the level of harassment or a threat of harm to you.

Such restraining orders are usually outside of the family law forum.

However, our family law firm works with experienced attorneys who handle civil harassment restraining orders and we can provide our clients with referrals to such persons.

Should I tell the children their mother cheated on me?

This is a personal decision but you should be careful about disparaging your wife to the children. California courts usually care about disparagement, which are negative comments by one parent against the other parent.

  • Ask yourself what your motivation is for telling the children.
  • Ask yourself whether there is a better way to present the separation issues to the children, including not mentioning the cheating.

Perhaps a better option is you and your wife sitting down with the children and explaining in a child-focused way why you and she intend to separate.

That assumes you and she can be in the same room together as we realize emotions may be high.

Is it wrong to voice my frustrations to friends, family or on social media?

It is human nature to voice frustrations. It is normal in a marriage for a husband or a wife to speak with other family, or friends about marital issues.

Your wife cheated and you are upset. Is it a good idea to voice that frustration about the cheating to family or friends?

Once again, ask yourself why you are doing it. If it is to get some kind of revenge, is that a healthy motivation?

While these are personal decisions, realize your statements to others may be used against you especially if they come from a place of anger.

If there are threats, or even veiled threats, in your statements, your wife may use the statements to family or friends in the divorce proceeding especially if there are domestic violence issues between you and your wife. We discuss this in more detail below.

Regarding social media, as experienced divorce lawyers, we can tell you we hate anything about the divorce being aired on social media by someone we represent.

Our recommendation is to stay away from it when it comes to such issues and while the divorce is in front of you or is already pending.

We know it is easier said than done but we prefer our clients to take a businesslike approach to their divorces.

Emotions such as anger rarely resolve anything. Any toxic emotion gets in the way of smart choices.

Be careful with domestic violence allegations because your wife claims you are "angry" at her

Do not lash out at your wife. Do not threaten her because she cheated.

Do not engage in any emotional or physical abuse. Do not engage in financial abuse.

The last thing you want to do is give your wife a reason to seek a family law restraining order against you.

Cheating often results in argument and argument sometimes results in domestic violence disputes. Your wife calls the police, she claims you committed domestic violence against her, the police arrest you and your world just turned upside down.

Was it worth it? Even if you are not criminally prosecuted, does that set of events sound at all like something you want to go through?

Be careful with false allegations of domestic violence against you after her cheating

It is not unusual for a cheating wife to get defensive and start to make false allegations against her husband, sometimes just to distract everyone from the focus being on her.

Smart husbands do not allow a wife's cheating to unbalance them and therefore have a negative effect in the divorce case that follows. Keep your cool and our family law firm will help you make smart choices.

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Bonus tip - infidelity often leads to cohabitation

If you are the supporting spouse and your wife to whom you pay support cheated during the marriage, odds are pretty good she may cohabitate with the other person.

Why should you care?

Cohabitation has a direct effect on spousal support. The law states a supported spouse who cohabitates with a non-marital partner is presumed to have a reduced need for spousal support.

Check out our article on cohabitation and spousal support in California.

Smart choices both before and during the divorce start with hiring the right divorce attorney

Our divorce lawyers are intelligent, experienced and will be a pleasure to work with throughout the case. Contact us and we will discuss and analyze your specific situation. The legal advice you need is one phone call away.

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