Most people are probably already familiar with the term, but to kick things off right, let’s start with the legal definition of adultery, which is: any consenting sexual relationship where at least one of the parties is married to someone else. 

Historically, punishments for this behavior were swift and harsh, ranging anywhere from torture to mutilation, and in some cases, even death. Not to mention a hefty dose of social isolation and religious shunning for many. The brunt of all which was—unsurprisingly—borne by women. While men occasionally faced fines or punishments, as a whole, their consequences were relatively minor. 

Luckily, over the past century or so, most countries have done away with such extreme measures. However, while relationships and sexuality are seen much differently than they were in the past, it may be surprising to hear that adultery is still a criminal offense in some states, including Idaho, Mississippi, Virginia, Oklahoma, North Carolina, and others. And while these laws aren’t often enforced, it still makes adultery a pretty valid concern for those individuals dealing with divorce. 

Here’s what you need to know about how the law handles adultery in California. 

What is the Law on Adultery in California?

Adultery is not against the law in California, neither is it technically “illegal,” since divorce is a civil proceeding, not a criminal one. 

As to how it affects divorce, California is a no-fault state. This means, that a couple doesn’t have to do anything more than cite “irreconcilable differences” for a dissolution. Being a no-fault state also means that courts can’t consider fault when making major decisions about property and child custody. 

The only way adultery might affect the financial outcome of a divorce proceeding, is if the injured party can prove that the cheating spouse blew through shared income or marital property on the affair. If they can, a judge would probably order that money to be reimbursed to the family pot before divvying it out. Proving this can sometimes be tricky, though, especially if the cheating spouse didn’t leave a paper trail. 

Can I Sue My Spouse for Cheating in California?

 

As satisfying as that would be, the short answer is: no. 

In days gone by, there used to be ways for an injured party to bring a suit against the homewrecker in the adulterous duo. These were usually filed by the husband against the wife’s lover for compensation of lost affection. While there are some exceptions, most states have done away with these “alienation of affection” or “heart balm” suits, and the closest you can get to suing a lover in California is if the situation was so bad, that there was actual harm. (Say, if Handsome Homewrecker was stalking or threatening you.) But even then, those wouldn’t so much be “adulterous homewrecker” charges, as they would be a case of simple battery and assault.  

Who Pays for Divorce if There’s Adultery?

For this question, we again refer back to California’s status as a no-fault divorce state. Remember, in these jurisdictions, cheating isn’t grounds for divorce, and neither can it be used to determine the split of assets. So, as you might guess—regardless of who was unfaithful—both parties are required to fit the bill for their own attorney’s fees.

Can a Cheating Spouse Get Alimony?

Absolutely. 

Alimony, or “spousal support,” is basically financial aid given by a “supporting spouse” to a “dependent spouse” after a divorce, upholding the idea that financial reasons shouldn’t be the reason people stay in an unhappy marriage. Ergo, cheating doesn’t really come into play here. This situation most often arises with women, who frequently put careers and personal pursuits on hold in order to support a family, which of course, then hinders her marketability for jobs post-divorce. 

The only way adultery might come into play in regards to alimony, is if the cheating spouse is living with his or her lover, or getting other financial help from the new relationship. In that situation, the savvy attorney might argue there’s less need for financial support, thus possibly reducing the price tag of alimony.

How Long Do You Have to Pay Spousal Support in California?

 

Since spousal support is based entirely on a couple’s individual situation, it’s difficult to say exactly how long alimony payouts will last. When deciding amount and length, courts will look at a few factors, including: 

• Duration of the marriage;
• Standard of living during the marriage;
• The supporting spouse’s ability to pay;
• Age and health of the respective parties; and
• What marketable education and job skills the dependent spouse has.

Obviously, these factors rely heavily on personal circumstances, and as a result, the verdicts will vary. While they are being determined, a judge will often order temporary support payments, which are made to the dependent spouse while the case is pending.

Does Infidelity Affect Child Custody in California?

As a no-fault divorce state, California does not consider adultery when determining the best interest of a child. This is because courts recognize the importance of children having healthy relationships with both parents, and want to facilitate that whenever possible. Hence, the only way an affair might hurt a custody arrangement is if the cheating spouse’s actions are somehow detrimental to their parenting. (Say, if they were neglectful, or the new relationship was causing harm to the child in some way.) Otherwise—however unsavory—adultery doesn’t mean you’re a bad parent. 

In short, while being an at-fault state does make some things simpler, divorce is almost always messy and complicated. If you have more questions about how infidelity affects alimony in California, or want to talk about your specific situation, please reach out to us at (209) 989-4425, or get in touch online to schedule a consultation. Divorce is emotional, especially when infidelity is involved, but together, we can help give you the best shot at rebuilding a bright future.