Adultery is a painful event. A spouse you trusted and to whom you promised fidelity has broken that faith. It’s a heartbreaking betrayal that far too many people experience, and rebuilding trust is often impossible. In fact, adultery is one of the most common reasons for a couple to get divorced.
However, while adultery is an outstanding reason to get divorced, it won’t actually affect the divorce process in California. That’s because California is currently a no-fault divorce state. Unless otherwise specified, the reason for a divorce has no impact on the end result. Except in very specific circumstances, adultery is irrelevant in resolving California divorce cases.
The Evolution of California Divorce
Historically, marriage was a much more permanent contract than it is today. Marriage was intended to be a life-long bond, with divorces only allowed for a good reason. In fact, through the 1960s, it was required that one party be “at fault” for the divorce. To legally end a marriage, courts demanded that one of the partners was blamed for the end of the union.
There were several reasons why a divorce might be granted. Visible abuse was one such reason. Adultery was another. If either partner could prove that the other party had been unfaithful, then a court was much more likely to grant a divorce.
Furthermore, many courts also followed the “clean hands” doctrine, which insisted that only one partner was to blame. If both partners were partially “at fault” for the end of the marriage, the court would grant the divorce.
This was compounded by the fact that the person “at-fault” was often punished during the division of assets. The “innocent” party often received more assets or higher alimony as a form of restitution for the perceived wrongs they had suffered. This led to couples fighting to show that the other person was to blame, making the process stressful and damaging to both partners’ reputations.
It took until 1969 for any state to introduce a no-fault divorce clause. California was actually the first, with the Family Law Act introducing the idea of “irreconcilable difference.” This allowed partners to simply proclaim that they were unable to reconcile, and ended the inherently adversarial “at-fault” system.
Why No-Fault Divorce Matters
California remains a no-fault divorce state today. This is for the best. People are able to leave unhappy relationships without placing blame or trying to prove abuse, adultery, or abandonment. However, when one party feels wronged, the no-fault system may feel unfair.
Because California is a no-fault state, most former factors relating to “fault” are no longer considered by the courts. As long as neither party was being abused, fault isn’t considered in any part of the divorce. This includes the division of assets and the awarding of alimony. If one partner cheats, the judge awarding alimony or dividing property does not take it into account. Judges are encouraged to follow the Uniform Marriage and Divorce Act’s guidelines when awarding alimony, considering:
- The marriage length
- The couple’s living conditions during marriage
- The age, health, and financial conditions of both partners
- What would be necessary for the lower-income spouse to become self-sufficient
- The financial impact of paying alimony on the higher-income spouse
Emotional consequences are not under consideration. In some cases, this results in the faithful partner having to pay alimony to the person who was unfaithful. Legally, this is considered fair because it helps support the lower-earning partner. However, the wronged partner may not agree, considering that the lower-income partner is the reason for the marriage’s dissolution.
The Role of the Prenuptial Agreement
There is one important exception to these rules. Adultery can affect the asset division process if you have a contract in writing prior to the incident. That’s where prenuptial agreement come in.
Prenuptial agreements can include clauses specifying how assets should be divided if one party commits adultery. These agreements can specify how assets will be divided, what property is considered marital property, and even the alimony amounts to be paid in case of an eventual divorce. For couples with significant assets or potential future income, setting up a prenuptial agreement just makes sense. Adding a lifestyle clause is just one more layer of safety.
The goal of a lifestyle clause is to alter the rest of the prenuptial agreement if a requirement isn’t met. While lifestyle clauses can include various requirements, fidelity is one of the most common. With a prenuptial agreement that includes a clause on adultery, the cheating partner may face consequences like a complete forfeiture of alimony or certain marital assets.
Prenuptial agreements are the most common contracts that offer this type of security. However, if a couple is already married without a prenuptial agreement, or without an adultery clause, an adultery clause can still be put into place. Post-nuptial agreements are often written for just this reason, to help offer both partners security in case of later adultery.
Whether written before or after marriage, these agreements have a wide variety of uses. Not only can they offer the couple a roadmap in case of divorce, they can also help deter either partner from cheating in the first place. When financial consequences of infidelity are in play, both partners are more likely to either remain faithful or get a divorce without cheating.
How to Take Adultery Into Account
Adultery may no longer be considered a legal cause for a divorce, but it’s certainly the emotional cause of many. A marriage is an important commitment that’s intended to last a lifetime, but infidelity can ruin that in an instant. It’s in both your and your partner’s best interest to put systems in place that deter infidelity.
Whether or not adultery has already occurred in your relationship, it can’t hurt to add a fidelity clause to your marriage. It’s a measure of financial protection for both yourself and your partner. If you are interested in creating a prenuptial or post-nuptial agreement, reach out to a qualified family law attorney today.