How Does Adultery Affect a Divorce Case in California?

Recent studies have indicated that more than 20% of married men and 13% of married women have committed adultery with at least one other person. While the reality of learning that your spouse has been unfaithful can be devastating, the truth is, committing adultery can also have very real consequences on the divorce process as well.

Typically when someone commits adultery and the other spouse wishes to file for divorce, they’re likely to do so citing “irreconcilable differences” — a common reason that many divorces are often filed under.

For more than 20 years, The Law Offices of Steven E. Springer has helped family law clients in San Jose and Morgan Hill, California, as well as the surrounding communities through the difficult and often complex process of divorce.  

Is California a No-Fault State?

Yes, California is a no-fault state for divorce, which means the court does not consider any specific reasons that the couple is filing for divorce when deciding the case. In California, there are only two grounds for divorce:

  1. One of the spouses is incurably insane; or,
  2. Both spouses agree that the marriage is irretrievably broken due to irreconcilable differences.

Infidelity might indeed be the irreconcilable difference that leads to the end of the marriage, but ultimately that makes no difference to the court.

How Can Adultery Be
a Factor in My Divorce Case?

When other decisions are made about the terms of a divorce or legal separation, is adultery considered as a factor? It is true that, while California is a no-fault state, there are some very specific circumstances where the court may factor infidelity into the equation during the decision-making process.


Alimony is typically referred to as spousal support in California. Spousal support can be awarded to help ensure that neither spouse ends up destitute after divorce. The court has latitude in deciding how much and how long spousal support is awarded, and it takes into consideration a variety of facts, such as the length of the marriage, the financial contributions of each spouse to the marriage, and the earning capacity of each spouse, among others. However, one factor that does not figure into the equation is adultery. One exception might be if the court awards support to the faithful spouse for mental healthcare needed as a result of the infidelity.

Asset Division

California law dictates that marital assets, as well as marital debt, be divided equally among the parties. “Equal” doesn’t always mean “fair” for many spouses. Adultery is not typically a factor in this process, although the court might consider it if the cheating spouse spent significant marital finances on the affair or incurred marital debt as a result of the affair.

Child Custody

Again, adultery isn’t typically a consideration in child custody matters unless there is compelling evidence that the cheating spouse’s affair traumatized or posed a danger to the children. For example, if a parent left kids on their own to spend time with the affair partner or if the cheating spouse openly flaunted the affair partner in front of the children, causing confusion and emotional trauma.

Get Reliable Legal Counsel
The Law Offices of
Steven E. Springer

Despite what many of us want to believe, the unfortunate truth that the statistics show is that many marriages will end because one or both spouses commit adultery. While California law doesn’t allow infidelity to drive the terms of a divorce, that doesn’t mean that instances of infidelity can’t be used against you during the divorce process. That’s why it is so crucial to have an experienced family law attorney on your side who understands the laws and how to protect your rights.

At the end of the day, a marriage that began with promise and fidelity ends with sadness, even in the most amicable of divorces. The more contested a divorce is, the more complicated it can become. Regardless of the circumstances of your unique situation, you shouldn’t have to face this battle on your own. Consult with an experienced divorce attorney today to help ensure that your best interests are protected at every phase of the divorce process. 

At The Law Offices of Steven E. Springer, we guide family law clients through the divorce process using our experience and compassion. Our firm proudly serves clients in San Jose and Morgan Hill, California, and in the counties of Fremont, Hayworth, Pleasanton, Alameda, and Santa Clara. So if you or someone you know is considering divorce, filing, or has been served with divorce papers, call us today for reliable legal guidance and support.

Posted in Divorce

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