Having a marriage end in divorce is hard under most circumstances. However, when the reason for the divorce is infidelity, what was already painful can be devastating. Processing your ex’s betrayal can be difficult, especially in the midst of your divorce case. However, it’s important to consider how their extramarital conduct may affect your case outcomes. Therefore, you need to know: How will my ex’s affair impact my divorce?
California Grounds for Divorce
California is a no-fault divorce state, meaning that the court does not have to find that either party was responsible to grant a divorce. Aside from the parties meeting the jurisdictional requirements, parties seeking to divorce or legally separate can do so on the grounds that they have:
- Irreconcilable differences, which have caused the irremediable breakdown of the marriage, or because of
- Permanent legal incapacity to make decisions.
Adultery is not a ground for divorce in California. This is true even when an affair may be the reason for a marriage ending. However, although infidelity is not a legal ground for a California divorce, that does not necessarily mean that the court won’t consider evidence of your ex’s extramarital relationship.
California Community Property and Adultery
In California, outside of a few limited exceptions, everything a couple earns or acquires during the marriage is their shared or “community property.” This means that each partner has an equal interest in their marital funds and assets.
During divorce, the court will divide community property between the parties equally. However, suppose there is evidence that the unfaithful spouse used community assets to support their adulterous conduct. In that case, a judge can order the unfaithful spouse to reimburse the other spouse for their community share of the expended asset. For example, if an unfaithful spouse bought lavish gifts for their affair partner or financed a weekend getaway with marital funds, they may have to repay their spouse for their half of these expenses during the divorce.
Child Custody and Adultery
California divorce courts will evaluate numerous factors when making legal and physical custody decisions. Ultimately, the court’s orders must be in the child’s best interest. When both parents are safe and appropriate, the law favors parents having joint decision-making authority and significant time with their kids.
Your ex’s affair may have affected you and your kids. How much their extramarital conduct may impact their custodial rights will depend on the facts. Divorce is hurtful to children even when there has not been adultery. Generally, the fact that a parent has been unfaithful is not a reason in and of itself to limit parental rights. However, if a child has been adversely affected by an affair, it may impact custody. For instance, if there is evidence that your ex or their affair partner has been abusive towards your kids, the court could limit your ex’s contact and decision-making authority.
Alimony and Your Ex’s Affair
In some circumstances, the divorce court may order one spouse to pay the other alimony (maintenance). This type of support is usually ordered when one party makes significantly less than the other or is financially dependent. Alimony is awarded based on financial need and not because of adultery. In other words, the court won’t punish your ex for having an affair by making them pay you alimony. However, the court will consider other factors to determine if a support order is necessary.
By contrast, if you are the more financially well-off partner, you may be ordered to pay alimony to your unfaithful ex. However, the court can consider whether a party receiving spousal support cohabitates with another person. For example, if your ex moves in with their affair partner and their new arrangement makes them more financially sound, it could result in a lower alimony amount.
Finding out your spouse has been unfaithful can be hurtful and shocking. While you are processing the pain of your ex’s betrayal, you will also have to navigate the complexities of your divorce. Under these circumstances, it’s in your best interest to work with an experienced California divorce attorney. Your lawyer can help you objectively evaluate your case, explain your options, and advocate for your best interests.
Contact an Experienced California Divorce Attorney
If you are considering divorce and your ex has had an affair, you should contact an experienced California divorce attorney. Your counsel can help you evaluate your situation and identify options that work best for you.
The attorneys at the Law Offices of Judy L. Burger are experienced California divorce attorneys who can help you during all phases of your divorce. We understand how an affair can impact a California divorce and can help you with your case. Our firm assists clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities. Call us at 415-293-8314 to schedule a private appointment or visit our website.