Adultery is a very common reason for a couple to divorce. Though no one imagines they would ever commit adultery, the fact is that some studies have found that in approximately 40 percent of marriages, one or both spouses engages in an affair. More often than not, an affair leads to divorce. Many people wonder, does adultery impact child custody decisions?
California implemented the concept of no-fault divorce in 1970. After this theory was put into practice, divorcing couples had two reasons available for filing for divorce: irreconcilable differences, or that your spouse is incurably insane. Though the first reason is much more common, in either option you do not need your spouse’s consent to end your marriage. Because of no-fault divorce, California courts are not supposed to take into consideration any fault when granting a divorce, including infidelity. Still, a judge can consider how the infidelity financially impacts the non-adulterous spouse. In very rare situations, a judge might consider how the adultery impacts the children of the marriage.
Of any of the issues in a divorce, the courts view child custody as the least affected by adultery. Just like in any other scenario, California courts determine child custody issues based on what is in the best interests of the child. Generally, the state believes that a healthy and close relationship with both parents is in the best interests of the child. Adultery would only have bearing on child custody in situations where the infidelity reflected on the spouse’s fitness as a parent, for instance, is the spouse engaged in a sexual act with another person while the child was present. Though adultery may be frowned upon in society, it does not have much bearing on divorce in California.
Adultery could have some effect on other issues in divorce, in certain circumstance. For instance, infidelity might affect property distribution if the unfaithful spouse spent their income on their paramour. California is a community property state, meaning a married couple equally owns any property acquired by them during the marriage, including income. Therefore, if the adulterous spouse spends income on the affair, they are essentially taking it from the marital estate, and the court will take this into consideration. A judge will not aware one spouse more property or money just because they were cheated on, however, the court can order the adulterous spouse to reimburse the other spouse for the marital estate they used on the affair. The non-straying spouse would have to provide proof of what the other spouse spent in order to get reimbursed.
Adultery only affects spousal support in rare situations as well. Again, the court will not order the adulterous spouse to pay support simply because they were unfaithful, because this would be punitive (punishment). The court is only allowed to award spousal support based on the needs of one spouse and the ability of the other spouse to pay it. However, adultery could impact alimony in a different way. If the wronged spouse begins cohabitating with a new partner after the divorce begins, but before it is final, the court would decided that this “decreases” that spouse’s need for financial support, and a judge may award less spousal support accordingly.