The United States is reportedly one of the countries with the highest rates of infidelity in the world. One survey found that 1 in 10 married Americans under the age of 40 still use dating sites.
Cheating is one of the most common reasons for divorce—and it can come in different forms. Infidelity refers to any breach of trust in a romantic or sexual relationship. It can include emotional affairs, online relationships, romantic communications, or adultery. Adultery is a legal term that refers specifically to extramarital sexual intercourse.
If you have discovered or committed adultery in your marriage, you may be wondering what the legal implications are and how it will affect your divorce.
A Quick Overview of Adultery in California
- California is a no-fault divorce state.
- Infidelity, including adultery, is not illegal and is not considered a crime in California.
- Clauses penalizing infidelity in a prenuptial agreement can risk making the agreement unenforceable under California law (Diosdado v. Diosdado, 2002).
- A spouse who was cheated on is not automatically entitled to favorable settlement terms. However, infidelity can affect custody, and financial infidelity may influence spousal support and property division.
- Hiring a private investigator and an experienced family law firm can help you document evidence, make informed decisions, and protect your rights.
- Emotional distress claims are separate from divorce proceedings in California. Adultery or cheating alone does not provide a legal basis to sue a spouse for intentional infliction of emotional distress.
- California does not recognize alienation of affection claims.
How Adultery Can Affect Divorce Outcomes in California
In California, divorce can be granted without proven wrongdoing by either party, and a spouse cannot be sued or legally punished for any form of cheating. However, infidelity can impact divorce proceedings and affect:
- Credibility: The court’s view of a spouse’s credibility may be impacted if their actions involved dishonesty or misconduct.
- Child Custody: Adultery may affect child custody decisions if a parent’s behavior was abusive, neglectful, or harmful to the child’s health, safety, or well-being.
- Asset Division: If a spouse uses community property funds for adultery or other secret activities, the court may order compensation, additional spousal support, or property division in favor of the betrayed spouse.
- Spousal Support: One may petition the court to modify an existing spousal support order if they can demonstrate a significant change in circumstances. If it is proven that the spouse receiving support is cohabitating with an intimate partner, a California court will generally presume that their need for spousal support has decreased.
Financial Infidelity and Adultery
California is a community property state, meaning that all income or assets acquired by either spouse during marriage are generally considered marital assets, divided equally upon divorce.
When a spouse secretly uses marital assets for undisclosed activities, such as gambling, addictions, or affairs, this is considered financial infidelity. Evidence of financial infidelity may include emails, text messages, bank statements, or credit card records that reveal undisclosed spending or transfers. In such cases, the court may award additional spousal support or adjust the division of property to provide a fair remedy to the spouse affected by the financial misconduct.
Proving Adultery or Financial Infidelity
Is your spouse cheating on you? Is your spouse hiding assets to deprive you of community property?
Kaspar & Lugay LLP attorneys work together with investigators and forensic accountants to find answers and obtain relevant, legally admissible evidence of infidelity and its impact on your children’s well-being or the management of marital property.
We specialize in financially complex, high-asset divorces and work diligently to achieve the most favorable outcome for our clients. Kaspar & Lugay LLP Partner Brent Kaspar is a Certified Public Accountant (CPA), and Partner Arvin Lugay has advised and represented some of the most prestigious financial and banking institutions in the country in high-stakes litigation.
Our strategic approach ensures our clients are in the strongest possible position during negotiations. Verified information can be highly effective as leverage in resolving divorce cases through negotiation rather than trial. When a settlement agreement cannot be reached, our trial-proven lawyers know how to build a winning court case.
Call 415-789-5881 or contact us online to schedule a discreet consultation with our experienced family law attorneys in San Diego, Corte Madera, Napa, and Walnut Creek.
