Will Cheating Affect My Divorce? An Overview of California’s “No-Fault” Divorce Policy

One of the most common questions prospective clients have when meeting with a family law attorney is how infidelity will affect their divorce. The short answer is that California is a “no fault” divorce state, which means individuals asking for a divorce do not have to prove that their spouse did something wrong. This also means that courts are not supposed to consider things like infidelity or any other type of fault when deciding to grant your divorce, and that evidence of misconduct between the parties is generally inadmissible. 

Historically, before no-fault divorce, one spouse would have to allege a particular reason for seeking a divorce, such as adultery or cruelty, even if both parties wanted one. For example, in New York, which is not a “no-fault” state, one can seek a divorce on grounds such as cruelty, abandonment, or adultery. With the passage of the Family Law Act of 1969, California became the first state to introduce “no fault” divorce. Today, seventeen US States, including California, Florida, and Nevada, are “no fault” jurisdictions.

Most states that are not strictly “no fault” states still have the option to seek a divorce on fault-based grounds as well, but in California, the only grounds you need to seek a divorce are “irreconcilable differences” — essentially stating that you do not get along. (Fam. Code § 2310.). This enables one party to unilaterally seek a divorce even if the other party wants to remain in the marriage, no proof of wrongdoing required. In fact, California went so far as to establish that no evidence of acts of misconduct could be admitted in dissolution or separation proceedings. (Fam. Code § 2335.) Despite this, we do see instances in which fault-like claims and evidence make their way into judicial decision making.

The most common instance of this is with domestic violence. Family Code Sections 40320(m), 4324.5 and 4325 establish that if a spouse has been convicted of abuse against the other spouse in a criminal proceeding within the past 5 years, then there is a rebuttable presumption that the abuser is not entitled to spousal support. Further, Family Code Section 4320(i) mandates that the court take evidence of domestic violence into account as a factor when determining spousal support. These statutes represent understandable public policy, but they certainly are at odds with not allowing evidence of marital wrongdoing to affect orders in divorce proceeds.

Similarly, when ruling on issues of child custody, the court must determine what is in the child’s best interest, which involves a holistic analysis of factors ranging from the relationship between the parent and child to either parties’ use of illegal or controlled substances. (Fam. Code §§ 3020; 3011.) With regard to domestic violence, if a party committed an act of domestic violence against a spouse, child, or sibling in the last 5 years, there is a presumption that they should not be awarded sole or joint custody. (Fam. Code § 3044.) Of course, in determining custody, acts of domestic violence and substance abuse should be taken into consideration. Nevertheless, these considerations necessarily leave room for parties to make accusations about each other’s character, and misconduct during the marriage.

In making property division determinations, judicial officers will take into consideration the fact that there is a judgement for civil damages for an act of domestic violence and are permitted to enforce that judgement against the abuser’s share of community property. (Fam. Code § 2603.5.) Additionally, Family Code section 4324.5 allows a court to award up to 100% of the community property portion of an abuser’s retirement account to the victim spouse.

Another area in which we see fault-like claims make their way into judicial decision making is with claims for breach of fiduciary duty. Generally speaking, spouses are held to certain duties to deal fairly and in good faith when managing community property during marriage, and until the assets are distributed in the divorce. (Fam. Code § 721.) This means, for example, that if one spouse is having an affair, and spends community funds for gifts or hotels in furtherance of the affair, they are breaching their fiduciary duties. Similarly, if a spouse had a gambling problem, and lost significant community funds without the other spouse’s consent or knowledge about the gambling habit, this may be a breach of the gambling spouse’s fiduciary duty.  

In the event of a breach of fiduciary duty, a court may award the aggrieved spouse 50% of the value of the asset that was inappropriately gifted, mismanaged, or squandered. Additionally, if the aggrieved spouse can show that the breach was done with malice, oppression, or fraud, they would be entitled to punitive damages in the amount of 100% of the asset. (Fam. Code § 1101.)

While California’s “no-fault” policy means that the parties’ conduct during the marriage and who is responsible for its breakdown is not relevant as to whether the divorce will be granted — and certainly limits the admissibility of fault-type evidence — there are plenty of circumstances in which fault-like evidence and claims can and do make their way into divorce proceedings.

It is always a good idea to consult your attorney on whether certain acts during your marriage are relevant to your divorce proceedings and what the consequences of those actions may be.