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Does Adultery Impact Child Custody in California?

Adultery impacts countless relationships and, in many cases, can be a sign that divorce is looming.  As spouses begin grieving the loss of their marriage, new questions and concerns arise regarding important issues such as support, custody and visitation, and property division. If infidelity was a factor which contributed to the divorce, many clients ask what impact, if any, cheating has on the impending divorce case.

A person pulling off their wedding band with some documents spread out on the table

California is a No-Fault Divorce State

California is a no-fault divorce state, which means spouses can file for divorce without pointing the finger at each other. The grounds for divorce in California are limited to irreconcilable differences and permanent legal incapacity to make decisions. You’ll notice there are no options which include the intimate details which led to the breakdown of the marriage or regarding fault. The California courts are generally not concerned with “why” a marriage broke down, all that matters is that the marriage is irretrievably broken.

Only in limited circumstances does fault play a role in California divorce cases.  These exceptions are limited to cases involving domestic violence and, to an extent, custody and visitation. 

 In cases where there is a finding of domestic violence, support, property division, and child custody can all be impacted.  It is the public policy in California that victims of domestic violence should not pay spousal support to their abusers, so an abuser may lose his or her right to spousal support

A finding of domestic violence will also automatically implicate Family Code section 3044 which creates a presumption that joint custody shared between a domestic violence perpetrator and their victim is not in the best interests of the child(ren). And finally, an abuser may lose their community property interest in the victim’s retirement account.

Fault can also impact custody and visitation.  If the marriage ended because a parent abused drugs or alcohol, that addiction could impact custody orders.  Any behavior by a parent which impacts the health and safety of a child will impact custody orders.

Couple sits at a table with their lawyer, having a discussion over some laptops

Will adultery affect my divorce settlement in California?

Infidelity in a marriage can be very hurtful for all parties involved, including the children. Often, the spouse who has been cheated on would like to see some sort of punishment for bad acts inflicted by the family court. 

In most cases, infidelity is irrelevant in a California divorce proceeding. In fact, the court would prefer not to hear about it at all.  This can be very frustrating for a spouse who must now divide all their belongings, split time with the children, and possibly lose the family home because their partner cheated.

In what situations does adultery affect property division?

In very limited circumstances, adultery can impact property division in a California divorce.  If a spouse utilized community property funds “not for the benefit of the community” the community will be entitled to reimbursement for those funds.  The innocent spouse may also have a claim for breach of fiduciary duty as a result of the misuse of community property funds. 

Community property funds include all earnings and accumulations of the parties acquired during the marriage.  Common examples of misuse of these funds would be a spouse spending their earnings on dates, hotels, or gifts for the person they are cheating with. 

It is not uncommon for a cheating spouse to give money to other partners or pay for their living expenses.  In some cases, a spouse will use significant community funds at strip clubs or to fund prostitution.  All of these cases may result in a reimbursement to the community and a claim for breach of fiduciary duty.

In what situations does adultery affect child custody?

A little girl hugging a woman and lookin gsadly out over her shoulder

In the vast majority of cases, cheating will not affect child custody. At the forefront of all child custody determinations is the “best interests of the child” standard.  A parent’s romantic entanglements generally have little to no impact on a “best interest” analysis.

Of course, some exceptions do exist.  If a cheating parent’s actions directly impact the heath, safety, or welfare of the children, infidelity can have an affect on child custody orders.  Consider the following examples:

  • A parent sneaking around with a new partner leaves young children unattended or neglected,

  • A parent’s new partner is abusive to the children or the parent,

  • A parent’s new partner poses some threat or danger to the children due to drug or alcohol abuse,

  • A parent spends less time with the children in favor of their new partner creating a new “status quo” for custody and visitation, and

  • Any involvement of the children in adult issues such as an effort by the parent who was cheated on to alienate the children from the cheating parent.

A mother kneeling down to talk face-to-face with a young girl

All divorce cases are complicated for the family members involved.  Inevitably, new romantic partners enter the picture for one or both parents.  It can be difficult for children if the cheating parent introduces the children to their new partner early on in the divorce process. 

In some cases, especially those involving teenage children, the children are aware of the affair and blame the cheating parent and their partner for the breakup of the family. Teenage children may express a preference to the court regarding which parent they would like to spend more time with.  Since these scenarios can affect the children’s emotional and physical well-being, the spouse's infidelity could have a direct impact on child custody. 

As stated above, involvement of the children in adult issues can also have a direct impact on custody orders.  In some cases, the spouse who was cheated on becomes so angry and resentful at their former partner that efforts are made to alienate the children from the cheating parent.  If the court finds that one parent is alienating the children from the other, it may make an order granting full custody to the cheating parent who can provide a more emotionally healthy environment for the children.

Adultery & child or spousal support in California

A professional looking couple consulting with a lawyer and signing documents

Infidelity does not factor into any child or spousal support calculations.  Many parties wonder if they can contract to such obligations in a premarital agreement.  For example, if one spouse cheats, they must pay the other a significant spousal support penalty or lose the ability to collect spousal support all together. 

Celebrity prenup headlines often refer to financial penalties in the event of an affair. Tiger Woods and his numerous affairs made the news when it was reported that his wife negotiated a stiff financial penalty in the event of another indiscretion. 

In California, such “infidelity clauses'' are unenforceable and against public policy. In no case will a history of infidelity impact child or spousal support.

Child Support

In California, courts use a guideline formula to calculate child support.  The factors/inputs include the earnings of the parties, number of children, time each party cares for the children, tax filing status, federal tax exemptions and deductions, retirement contributions, and more.  The Court also makes orders for payment of uncovered medical/dental costs, childcare expenses incurred for work or education, and extracurricular activities. These payments are ordered in addition to the base guideline child support number.

One of the greatest factors to impact the guideline child support calculation is timeshare.  Child support is largely based on the custody and visitation order.  In the circumstances listed above where infidelity might have an impact on the custody order, child support will also be impacted.  If a cheating parent loses custody of the children for any of the reasons set forth above, he or she will either have to pay a much larger child support amount or lose the ability to collect support.

Spousal Support:

In California, spousal support orders can either be “temporary” or “permanent”.  Temporary spousal support orders are made during the pendency of a divorce action and permanent spousal support orders are made upon entry of judgment and finalization of the case.  

The goal of a temporary support order is to preserve the financial status quo while the parties are going through the divorce process.  A permanent spousal support order is grounded in a list of factors set forth in California Family Code section 4320 which includes, but is not limited to, the earnings of the parties, the ability of the parties to earn, the assets and liabilities of the parties, health of the parties, age of the parties, the marital standard of living, one spouse’s career sacrifice due to devotion to domestic duties, any history of domestic violence, and a balance of the hardships between the parties.

Proving adultery in California

a woman and man sitting together at a desk having a discussion over a laptop

Saying something is so, doesn’t make it so.  Many divorcing parties have seen reality tv shows or movies depicting private investigators hired to catch a spouse “in the act” of cheating.  Often, this evidence is depicted as being useful in some sort of divorce or family law action. 

In California, evidence of a romantic affair itself has little to no value.  What is important to uncover is documented evidence of community property funds being misappropriated to the cheating spouse’s new partner.

As California is a no-fault state, evidence of an affair itself is largely irrelevant and therefore inadmissible in court.  Judges do not care about and in fact will often prohibit discussions about infidelity. If some facts about the affair are relevant to custody and visitation issues as discussed above, this limited evidence - evidence about the direct link between the parent’s ability to parent and the best interest of the children - will be admissible. 

How to prove a breach of fiduciary duty

As discussed above, community funds spent “not for the benefit of the community” may be reimbursable to the community and may result in a breach of fiduciary duty action. Further, efforts made to uncover evidence of these misappropriated funds may result in award for attorney fees and costs. 

In all California divorce actions, spouses owe each other disclosure of all material facts and information regarding income, expenses, assets, and debts.  If infidelity is present at the conclusion of a marriage, there may be some “red flags” that indicate a deeper dive into the family finances may be necessary.  

If the cheating spouse is discovered to be having an affair with someone who is unemployed and living a comfortable lifestyle, this could be indicative of community funds being spent on his or her living expenses.  In addition, social media posts with the cheating spouse vacationing with or giving gifts to their new partner may also be indicative that community funds have been inappropriately spent. If the community owns a business and the spouse operating the community business is cheating with an employee, community property income may be diverted inappropriately to the employee during divorce planning.  

Formal discovery may be necessary to review a history of credit card, bank account, savings account, and investment account statements.  The evidence of an affair needed in California divorce cases largely consists of financial records which prove a misappropriation of community property funds.  These documents should be provided voluntarily by the cheating spouse. If not, they can be obtained via subpoenas and other discovery tools.

Next: Cheating Spouses Leaving Digital Trails

If you’re looking for divorce representation, we invite you to contact Cage & Miles, LLP for a confidential, free consultation.


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