California—like many other states—is a no-fault divorce state, meaning that when parties file for divorce, neither party has to prove fault; nor does fault have any bearing on the divorce itself.
However, if one party has been unfaithful during the marriage, there are still some contexts in which this behavior might have consequences on terms of the divorce, as discussed in more detail below.
California Family Code
In California, you can file for divorce based on irreconcilable differences or when one party lacks the mental capacity for decision-making. However, contested divorces still occur as a type of divorce case filing, where there are typically disputes over issues such as property division and/or alimony payments. Judges do have the ability to take one spouse’s adultery into account if he or she determines that that adultery, for example, had an impact on the financial status of the other spouse and/or the child(ren)’s well-being.
Because California is a community property state, you and your spouse equally own everything that was acquired during the marriage, including income but not inheritance. If the judge determines that income was spent in the process of committing adultery, that was technically one party taking from the marital estate, and will need to be accounted for.
In addition, under California divorce law, alimony payments are supposed to be based on income and financial need alone. This means that while the spouse that committed adultery cannot be penalized for doing so by having to pay higher alimony payments, both parties still need to be very careful, especially during separation and before finalizing a divorce, as cohabitating with another partner could affect allocation of alimony because these payments are based on needs of the one spouse and the ability of the other to help with those needs.
In other words, if one spouse transitions seamlessly into living with their new partner, there may be the case that they do not need as much financial support as claimed.
As in many other states, the courts in California are concerned about what is in the best interest of the child. Thus, adultery is not one of the listed factors in terms of what can and cannot be taken into consideration when determining child custody. However, if that relationship negatively impacts the health, safety, and/or welfare of the child, it could impact custody. Do not be surprised if the other parent objects to certain aspects of time-sharing, citing any inappropriate exposure to the other spouse’s partner.
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