The infidelity of a spouse is, for many people, one of the most painful experiences in life, and it is the reason why a great many divorces are initiated. Emotionally, it is difficult to imagine that the infidelity of one partner would not be considered relevant to a divorce proceeding that was initiated for that very reason. The reality, however, is more complex.

The “No-Fault” Divorce Revolution

Put simply, adultery is not a formal grounds for divorce in California. That reality is not as harsh as it sounds, however; because, since 1970, California has offered “no-fault” divorce. The only two real “grounds” for a California divorce are “irreconcilable differences” and “incurable insanity.”

Nearly anyone can get a divorce in California by alleging irreconcilable differences, even over the objections of their spouse. Although adultery doesn’t apply directly to a California divorce, related issues such as property division and child support can be affected under certain circumstances.

Depletion of Marital Assets

Suppose that a husband (for example) maintained a long-term adulterous affair with a mistress for whom he bought expensive gifts and rented an apartment for trysts. During property division, a court is empowered to consider these “mistress expenses” a unilateral depletion of assets that belonged to both spouses and to proportionately adjust the division of property in the wife’s favor.  The same principle would apply against a faithful spouse who simply gambled the money away.

Harm to the Children

The most important principle in child support and child custody matters is the “best interests” of the child. In theory, these interests take precedence over the interests of either parent. Although a sexually unfaithful parent is not necessarily considered thereby “unfit” to raise children, sexual promiscuity might be seen as a part of an overall lifestyle that might harm the children unless custody were vested in the other parent.  

Cohabitation before the Divorce Is Finalized

It is not at all uncommon for a spouse, who is separated pending divorce (whether or not “legally separated”), to take up residence with a new boyfriend or girlfriend before a divorce is finalized. Indeed, some people would not even consider this to be an example of genuine adultery at all.  

It could affect spousal support, however, if the receiving spouse is the one living with a new partner and the arrangement affects the new spouse’s need for spousal support. For example:

  • The new partner might be voluntarily providing support to the receiving spouse; or

  • The couple might be saving money by combining expenses – an apartment for two might cost less than twice the amount of an apartment for one, for example, thereby reducing the expenses of the receiving spouse.

In all cases, the moral issue of adultery itself is utterly ignored by California courts. It is only when incidental issues arise that a divorce is affected.  

Here at CKB Vienna, we understand that a divorce is far more than just a change in legal and financial status. It is a deeply emotional issue that can explode into a firestorm if not appropriately managed. We are committed to helping you navigate the process while, at the same time, demanding fairness.

Our office is located in Rancho Cucamonga and we serve clients from all over town, including Alta Loma and Etiwanda. Call us at 909-980-1040 or contact us online so that we can begin exploring your options today.