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What Role Does Infidelity Play in Divorce Proceedings?

Posted on in Divorce

Los Gatos divorce attorney for adulteryThe end of a long-term relationship is rarely easy or simple, but it can become much more complicated and difficult if one partner has committed adultery. In these types of divorce cases, the other spouse will likely feel wronged, and they may believe that because their partner’s actions led to the breakdown of their marriage, decisions should be made in their own favor. However, it is important to understand the actual role that infidelity may play in the legal process of divorce and how it may affect the decisions that are made.

Infidelity and the Legal Aspects of Divorce

During the divorce process, both spouses are treated equally, and in most cases, the reasons for the end of the marriage will not play a role in the decisions made. Spouses should be aware of how infidelity may be addressed when handling the following issues:

  • The divorce petition - California is a “no-fault” divorce state, and when one spouse files for divorce, the only “grounds” that may be stated for ending the marriage are “irreconcilable differences” or a permanent inability by one spouse to make decisions due to a mental or physical disability. In the vast majority of cases, a divorce will occur because of irreconcilable differences, and rather than blaming one spouse for the end of the marriage, a divorce petition will simply state that the marriage has broken down beyond repair.

  • Property division - A couple’s community property should be divided in a way that provides each spouse with an equal share of their assets and debts. Even if one spouse’s infidelity was to blame for the end of the marriage, they cannot be punished by receiving a smaller share of the marital estate. However, if a spouse dissipated marital assets by spending them on non-marital purposes (such as by buying gifts for a paramour), they may be required to reimburse the marital estate for this dissipation.

  • Spousal support - As with the division of marital property, a spouse cannot be required to pay spousal support (a.k.a. alimony) or lose the right to receive spousal support as punishment for committing adultery. Spousal support may be awarded based on each spouse’s needs, their ability to find gainful employment and support themselves, and whether one spouse suffered impairment to their earning capacity because of domestic duties or contributed to the other spouse’s career advancement. Marital misconduct such as infidelity is not a factor that is considered when determining whether to award spousal support or when calculating the amount or duration of support payments.

  • Child custody - As with other aspects of divorce, adultery is usually not a factor that is considered when making decisions about legal custody of children or either parent’s visitation time. These decisions are based on what is in children’s best interests, and factors that may be considered include the parents’ past level of participation in caring for children and making decisions about how they should be raised, as well as each parent’s ability and willingness to cooperate in raising their children while ensuring that children have a good relationship with the other parent. Infidelity will usually only be considered if it has affected a parent’s ability to care for their children and protect them from harm, such as if a parent has left children alone so they could spend time with a new romantic partner.

Contact Our Los Gatos, CA Divorce Attorney

If your marriage has broken down because of adultery, you may be concerned about how this issue will be approached during your divorce. At the Law Offices of Benita Ventresca, we can explain your rights and help you understand the best ways to approach your legal concerns. We will provide you with representation throughout the divorce process, helping you reach an outcome that will allow you to move on successfully. Contact a Los Gatos divorce lawyer and set up a free consultation by calling 408-395-8822.


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