Infidelity tears families apart. But as painful as it may be, your spouse's affair isn't a crime in California. As a Sacramento divorce lawyer with over 14 years of experience, I've seen many clients react with shock to learning that adultery carries no criminal penalties in this state.
California operates under a no-fault divorce system, which means proving your spouse cheated isn’t necessary to end the marriage. But how does adultery affect divorce in California when community assets are involved? The answer has more to do with financial misconduct than moral judgment.
What California Law Says About Adultery
California effectively decriminalized adultery in 1976 through the California Consenting Adult Sex Act (Assembly Bill 489). Before this legislation, adulterous cohabitation was a criminal offense with penalties outlined in the California Penal Code. Today, adultery is neither a crime nor grounds for civil lawsuits in The Golden State.
The No-Fault Divorce Framework
California's Family Law Act of 1969 established irreconcilable differences as one of two possible grounds for divorce (the other being incurable insanity). That means you don't need to prove adultery, abandonment, or cruelty to file for divorce in California. The court doesn't care who cheated — its focus is on equitable financial resolution, not punishment for moral failures.
Note: Under California's no-fault system, most divorces proceed on the basis of irreconcilable differences, making moral fault legally irrelevant to dissolution proceedings. This distinguishes California from the 16 states where adultery remains a criminal act.
Adultery vs. Infidelity: Legal Definitions
Legally, adultery means sexual intercourse between a married person and someone other than their spouse. Infidelity is broader, encompassing emotional affairs and other betrayals. California law doesn't distinguish between these terms because neither triggers automatic legal consequences. What matters is how the affair impacts marital finances and child welfare.
When Adultery Affects a Divorce Case
Adultery becomes legally relevant when community property is misused. The affair itself isn’t a legal concern, but spending marital assets on a paramour is.
Dissipation of Community Assets
California is a community property state, meaning assets acquired during marriage are split 50/50. When your spouse spends community funds on someone they’re having an affair with, it’s known as dissipation or marital waste.
Courts recognize these common examples of dissipation of marital assets:
- Expensive gifts purchased for the paramour: Jewelry, electronics, or luxury items bought with joint accounts provide documented evidence of marital waste.
- Hotel rooms and travel expenses for romantic getaways: Credit card statements showing hotel charges or airline tickets can establish a pattern of misused funds.
- Rent or mortgage payments for the paramour's home: Using communal funds to pay for another party's living arrangement does direct financial harm to the marital estate.
If you can prove dissipation, the court will likely adjust the division of assets to reimburse you for the wasted community property.
Breach of Fiduciary Duty
California Family Code Section 1101 imposes a fiduciary duty between spouses. This legal obligation mirrors the duty business partners owe one another. By concealing affair-related spending, your spouse can breach this duty.
According to Section 1101, if the breach involves fraud, malice, or oppression, the court must award 100% of the value of the misused asset to the wronged spouse. The violating spouse must also pay the other spouse’s attorney fees. This provision is the single most powerful legal remedy for affair-related financial misconduct.
Impact on Spousal Support and Child Custody
Adultery's impact on spousal support and child custody depends entirely on proving harm to the wronged spouse’s finances or children.
Spousal Support Considerations
Committing adultery doesn't automatically disqualify your spouse from receiving alimony in California. Courts determine spousal support based on financial factors, such as earning capacity, marriage length, and standard of living, rather than moral judgments.
The 10-year rule matters here. Marriages lasting less than 10 years typically result in support lasting half the marriage duration. For marriages that last more than 10 years, courts have the discretion to extend support indefinitely.
Note: If your spouse moves in with a new partner after you separate, this creates a rebuttable presumption that their need for support has diminished. Shared living expenses may reduce financial dependency, which can decrease or eliminate support obligations.
Child Custody Ramifications
California courts decide custody based solely on the child's best interests. It’s worth reiterating that the affair itself won’t impact custody decisions. Parental fitness depends entirely on being able to provide a safe, stable environment.
Adultery only affects custody decisions when associated conduct could cause the child harm. For instance:
Exposure to Unsafe Environments or Criminal Activity
If the paramour has a criminal history or the setting of the affair poses danger, the court may intervene to protect the child from preventable harm.
Neglect of Parental Responsibilities
When a parent becomes so preoccupied with a new relationship that they miss school pickups, forget meals, or ignore supervision duties, these lapses can demonstrate unfitness.
The standard for proving unfitness is high. Simply having a new partner isn’t enough to meet it, even during child custody proceedings.
The Role of Prenuptial and Postnuptial Agreements
Written agreements can transform adultery from a legally irrelevant event into a financially consequential breach of contract. The state enforces infidelity clauses when prenups and postnups meet specific legal requirements.
Infidelity Clauses in Prenuptial Agreements
California does not enforce infidelity clauses in prenuptial agreements. While couples may draft provisions specifying financial penalties if one spouse cheats, California courts refuse to honor these terms.
The landmark case Diosdado v. Diosdado (2002) established that infidelity penalties contradict California's no-fault divorce system. Infidelity clauses attempt to reintroduce fault into divorce proceedings, making them unenforceable and contrary to public policy.
For a prenuptial agreement to be enforceable in California, it must meet specific legal requirements:
- Both parties must voluntarily sign the agreement without coercion or duress.
- Full financial disclosure must occur before signing, with complete transparency regarding all assets, debts, income, and liabilities.
- The terms must be fair and not unconscionable at the time of enforcement.
These requirements apply only to financial and property-related provisions. Lifestyle clauses, including infidelity penalties, remain unenforceable regardless of how well the agreement meets procedural requirements.
If you're wondering how to get a prenup, understand that the agreement requires careful drafting by an experienced family law attorney.
Postnuptial Agreements and Infidelity
Postnuptial agreements serve similar purposes but are created after marriage. These contracts can address financial concerns and property arrangements if circumstances have changed.
California courts scrutinize postnups more carefully than prenups because the parties are already in a confidential relationship with heightened fiduciary duties. Like prenuptial agreements, postnuptial agreements cannot include enforceable infidelity clauses.
Financial Consequences of Committing Adultery
The economic impact of adultery depends entirely on how community assets were used. While criminal charges don't apply, civil remedies may.
Traceable Expenditures and Asset Recovery
Proving dissipation of marital assets generally requires forensic accounting. Since the burden of proof rests on you to trace the money, you’ll need documented evidence connecting community funds to affair-related spending.
Here are a few of the types of evidence you can use to prove dissipation of assets:
Bank Statements Showing Wire Transfers or Withdrawals
Electronic records can demonstrate the movement of money from joint accounts to the paramour or affair-related expenses, creating a traceable financial trail.
Credit Card Statements with Hotel Charges, Restaurant Bills, or Gift Purchases
Itemized charges can reveal spending patterns and frequency, establishing the scope of the misuse of community funds.
Receipts for Jewelry, Electronics, or Luxury Items Given to the Paramour
Physical and electronic documentation can corroborate specific expenditures and their connection to the extramarital relationship.
Airline Tickets, Rental Cars, or Vacation Bookings
Reservation confirmations, boarding passes, and related travel records can tie community assets to the activities committed in the course of the affair.
Text Messages or Emails Discussing Financial Arrangements
Digital communication can help establish intent and provide acknowledgment of the fact that marital funds were spent on the affair.
Professional forensic accountants can reconstruct spending patterns, identify secret accounts, and calculate the total amount of the dissipated assets. In high-value cases, this kind of testimony can be crucial for recovering improperly used marital funds.
Attorney Fees and Legal Costs
Beyond asset recovery, Family Code Section 1101 mandates that the breaching spouse pay the wronged spouse’s legal fees if they can prove the former has committed fraud. This provision prevents the wronged spouse from bearing the financial burden of pursuing justice for misconduct.
Dating During Separation in California
The line between legal separation and divorce can create confusion about when new relationships begin. A little knowledge and strategic timing can shield you from dissipation claims as you move forward.
Legal Separation vs. Divorce
California recognizes legal separation as distinct from divorce. During legal separation, the spouses remain married but live apart, with court orders addressing support, custody, and property rights. Dating during this period technically constitutes adultery because the marriage hasn't formally been dissolved.
However, since California is a no-fault state, dating while separated doesn't affect divorce proceedings unless it involves dissipation of marital assets. As a general rule, courts don't penalize dating after physical separation occurs.
When Separation Begins
Separation legally starts when one spouse decides the marriage is over and takes action to end the relationship. This can be physical separation (moving out) or expressing intent to end the marriage while still sharing a residence. The date of separation matters because it determines when the accumulation of community property stops.
Dating immediately after separation can carry risk if your spouse claims you were having an affair before the split. In light of this fact, timing is an essential consideration.
Ready to Safeguard Your Financial Interests?
Adultery may not be a punishable offense in California, but marital financial misconduct is. If your spouse wasted community assets on an affair, you have legal remedies available. AF Law, a trusted family law firm in Sacramento, has helped countless clients trace hidden spending, document dissipation of assets, and secure full recovery of misused marital property.
Contact us today to discuss how your spouse's affair has impacted you. Our capable team can help you pursue financial accountability.
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