We have noted in a number of our posts how divorce can be a stressful time in life, especially if the basis for the divorce is adultery. Aside from the emotional trauma infidelity can cause, some people may be concerned that an extramarital affair may negatively affect them in family court. This post will briefly explore this question and provide some basic answers.
First, California is known as a “no-fault” state, meaning that a party seeking a divorce is not required to show that the other party is to blame for the demise of the relationship. With that, California law establishes two grounds for divorce: permanent legal incapacity to make decisions and irreconcilable differences. Neither of these grounds considers whether adultery establishes a legal basis for dissolving the marriage.
Nevertheless, this does not mean that adultery has no effect on a divorce. A family court judge can consider the financial impact adulterous spouse has on the marital estate. For instance, if the offending spouse spent community property on the affair, he or she could be held accountable and could be ordered to reimburse the estate. So money spent on rent, jewelry and other gifts could be reimbursed or reduced from a party’s share of the estate.
Additionally, adultery generally does not affect a parent’s rights to custody and parenting time. However, if a court finds that a parent’s new love poses a substantial risk of physical or emotional harm to a child, and a parent has taken up residence with that person, the court may adjust custody or parenting time accordingly.
If you have additional questions about the effects of adultery on divorce, an experienced family law attorney can advise you.