How Cheating or Adultery Impacts Your Divorce in California

Divorce is a complex legal process influenced by various factors, including the grounds on which it is filed. Adultery or cheating is one such ground that can significantly impact the proceedings and outcomes of a divorce. This article explores the legal ramifications of adultery in divorce cases, examining how it affects asset division, alimony, and child custody. Understanding these impacts can provide crucial insights for individuals navigating the legal landscape of divorce.

What is the Legal Definition of Adultery or Cheating in a Divorce Proceeding?

Adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse. The legal recognition of adultery as grounds for divorce varies by jurisdiction, reflecting differing societal and legal attitudes towards marriage and fidelity.

What are the proof requirements for adultery?

In jurisdictions where adultery is a ground for divorce, the plaintiff must typically prove the adultery to the satisfaction of the court. This proof often requires more than just an admission and may include evidence such as photographs, texts, emails, or witness testimony.

Is there a difference between cheating and adultery?

The key difference between adultery and cheating lies in their scope and the contexts in which they are considered. Adultery has a specific legal definition and implications, primarily relevant in the context of divorce proceedings. Cheating, on the other hand, refers to a broader spectrum of behaviors that betray trust within a relationship, not confined to legal definitions or implications. Understanding these distinctions is crucial for addressing the nuances of relationship dynamics and legal considerations in cases of infidelity. For the purposes of this article, we will use them interchangeably because most readers know the more commonplace term "cheating."

How Does Adultery/Cheating Impact the Divorce Proceedings?

Impact of Adultery on Asset Division

Equitable Distribution vs. Community Property

In states that follow equitable distribution laws, courts divide marital assets based on fairness, which can be influenced by the adultery. In contrast, community property states divide marital assets equally, where adultery may have less direct impact on the division outcome.

Specifically, California follows community property laws, meaning that all marital assets are divided equally between spouses in a divorce. The division of assets is unaffected by adultery, as the court's primary aim is to ensure a fair and equitable distribution based on the status of the property as either community or separate, rather than on the behavior of either spouse. (Cal. Fam. Code § 2550 (2022).)

Consideration of Adultery

Some jurisdictions consider adultery when deciding on asset division, especially if marital funds were used to further the affair. This can lead to an unequal distribution of assets in favor of the non-adulterous spouse.

Impact of Adultery/Cheating on Alimony

Courts consider multiple factors when determining alimony, including the length of the marriage, the financial status of each party, and the cause of the marriage's dissolution. Adultery can affect these decisions, potentially resulting in higher or lower alimony payments.

Although California is a no-fault state, there is a nuance regarding spousal support that could be indirectly affected by adultery. According to California Family Code Section 4323, if a spouse seeking alimony cohabitates with a non-marital partner, the presumption is that the need for spousal support is decreased. While this doesn’t address adultery per se, it reflects how cohabitation can affect alimony, which might be a consideration in situations where adultery transitions into a new living arrangement.

In some jurisdictions, adultery can bar the adulterous spouse from receiving alimony, particularly if their infidelity is deemed the primary cause of the marriage's breakdown.

Impact of Adultery/Cheating on Child Custody and Visitation

Best Interests of the Child

Child custody decisions are made based on the best interests of the child. While adultery by itself may not directly impact custody arrangements, the behavior associated with it, such as neglect of parental duties, can influence the court's decision.

Consideration of Adulterous Partner's Conduct

Courts may consider the conduct of the adulterous partner, especially if the affair has exposed the child to inappropriate situations or individuals, potentially affecting custody and visitation rights. In child custody matters, California courts prioritize the best interests of the child. Adultery by itself is not a factor in determining child custody. However, if the adulterous behavior impacts the child negatively, such as exposing the child to harmful situations or affecting the adulterous parent's ability to provide a stable environment, it could indirectly influence custody decisions.

Impact of Adultery/Cheating on Child Support

Adultery does not directly impact the calculation of child support in California. The state's child support guidelines are designed to be objective and focus solely on the financial needs of the child and the financial ability of the parents to meet those needs. The moral or ethical considerations surrounding adultery are not part of the child support calculation process. (Cal. Fam. Code § 3011 (2022).)

Is Adultery a Crime in California?

In California, adultery is not considered a crime. The state's laws reflect a modern perspective on personal relationships and marital issues, emphasizing privacy and consensual activities between adults. This approach aligns with the broader legal trend in the United States, where most states have decriminalized adultery, moving away from treating it as a legal offense to focusing on it as a matter of personal and civil dispute.

What Kind of Evidence Can You Use to Prove Adultery in a Marriage?

Direct Evidence

Direct evidence of adultery is unequivocal and includes things like photographs, video recordings, or eyewitness testimony of the adulterous act. However, such evidence is rare due to the private nature of these actions.

Circumstantial Evidence

Most adultery cases rely on circumstantial evidence, which suggests the occurrence of adultery without directly proving the sexual act. This can include:

• Communications: Text messages, emails, and social media interactions that suggest a romantic or sexual relationship.
• Financial Records: Evidence of gifts, hotel stays, vacations, or rent for an apartment that suggests an affair.
• Surveillance: Photographs or videos showing the spouse and the third party entering a hotel or apartment and staying for a time sufficient to commit adultery.
• Testimony: Witness statements about the behavior and interactions between the spouse and the third party that suggest a sexual relationship.

If my state has both fault and no-fault divorce, does it matter if I apply for a divorce on fault-based grounds?

It's important to note that with the widespread availability of no-fault divorce grounds, proving adultery is not always necessary to obtain a divorce. In no-fault jurisdictions, a spouse can file for divorce without proving any wrongdoing by the other party, often citing irreconcilable differences or an irretrievable breakdown of the marriage. However, evidence of adultery may still be relevant for the aspects of divorce proceedings mentioned earlier, even in no-fault cases.

In states where both fault-based and no-fault grounds for divorce are recognized (read more about the pros and cons of each), there are several key differences between the two approaches that can impact the divorce process and its outcomes.

How to Navigate Divorce After You've Been Cheated On

Navigating a divorce following adultery involves addressing both emotional and legal challenges. Start by securing emotional support through counseling or support groups, and educate yourself on the divorce laws in your jurisdiction, considering a consultation with a family law attorney to understand how adultery impacts your case. Preparing financially is also critical; take stock of all marital assets, debts, and individual finances to ensure a fair settlement. Exploring mediation or collaborative divorce could offer a less contentious path forward.

Focusing on personal well-being and future planning is essential during this period. Engage in activities that promote self-care and consider setting personal and professional goals to guide you through the transition. If children are involved, prioritize their well-being, shielding them from conflict and ensuring their needs are central to any decisions. By taking these steps, you can navigate the complexities of divorce with a focus on healing and rebuilding.

Do you need a divorce lawyer? What are your options?

The decision whether to file on grounds of abandonment is difficult in an already painful time. Consulting a lawyer that can help guide you through this process is often a good idea.

Hiring a lawyer is not your only path to getting legal guidance for your situation. Several lawyers and law firms have worked with Gavel to produce “legal apps” that can help you with this process:

• For those in California, Colorado, New York, Texas, and Utah; we have an app that guides you through divorce end to end
• For others in the US, this app can get you started
• Lastly, we have an app for Canadians

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