California Law on Extramarital Affairs and Alimony

By Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsThe worst thing that can happen to a marriage is infidelity. Most married people hope that something like this never happens. However, extramarital affairs occur more often than one could imagine. In fact, the American Association for Marriage and Family Therapy (AAMFT) reports that 40% of marriages fall prey to infidelity.

Now that we’ve accepted the reality of infidelity, the next big question in your mind likely has to do with divorce. Divorce is often the likely outcome of infidelity in a marriage and it can affect the results of the divorce.

So, let’s look at how infidelity affects divorce in California.

No-fault divorce 

California follows the no-fault divorce law.  So, there are only two primary reasons that can be used as grounds for divorce – incurable insanity or irreconcilable difference. The letter refers to issues between the spouses that have damaged the relationship beyond reconciliation.

In fact, one isn’t even required to testify as to why the marriage failed. The only thing needed to authorize the divorce is an agreement from both spouses supporting the divorce. The no-fault divorce law was implemented because it speeds up the divorce process and allows couples to go their way without bickering over every detail.

Another important point to note is that adultery is not a crime in California, and hence, there is no legal definition for it as far as the Californian law goes. However, adultery, in general, is defined as a sexual relationship that a married person indulges in with someone other than their spouse.

Californian courts will not consider adultery as a key factor in granting a divorce. No-fault divorce requires that courts simply grant the divorce based on the couple’s acceptance of marital failure.

Alimony and custody

Adultery does, however, affect alimony, but, not in the typical way one might imagine. Californian courts will award alimony based on the ability of the offending spouse’s ability to pay and the offended spouse’s financial needs.

So, it is possible for the offended spouse to receive less alimony than hoped for. For instance, if the offended spouse moves on and begins living with another partner, the courts may consider this spouse’s financial needs to be less significant.

As for custody, California prioritizes the child’s interests. So, adultery doesn’t affect custody in a big way. The only time it does is if the relationship has directly affected the children. For example, if the cheating spouse engaged in a sexual act with the paramour in the presence of the child/children.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation