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Infidelity May Have Negative Consequences During Divorce Negotiations

divorce heart.jpgGiven that California is a “no-fault” divorce state, it is relatively easy to get an actual court order ending a marriage. However, unbeknownst to the average person, certain wrongdoings – such as adultery – can still present hardships during the negotiation process of the divorce–though not necessarily factored by the court during the dissolution itself.

As our experienced Santa Rosa divorce attorneys often explain, the meaning of “no-fault” is that one is not required to prove that his/her spouse has committed a wrong during the marriage in order to obtain a divorce. As mentioned in a previous post, California offers only two grounds for asserting dissolution of marriage, which are (1) irreconcilable differences and (2) incurable insanity. Therefore, because individuals pursuing a divorce in California are limited to two grounds, marital infidelity is an irrelevant factor in the court’s divorce order.

Although adultery committed during the marriage does not affect the procurement of a divorce, it can potentially affect the child custody determination – if children are involved – and the management of marital assets.

Child Custody
In regards to child custody, the question is whether an extramarital relationship that carries over after the separation restricts the adulterous spouse from certain child custody or visitation rights. The answer to this issue hinges on the more important question of what the best interests of the children are. In relation to this particular discussion, the specific issue is whether it is in the best interests of the children to be around the extramarital partner. California courts do not view exposing children to non-marital relations as detrimental to their best interests. The courts seem to express that allowing the children to spend time with the “new girlfriend” or “new boyfriend” does not significantly impact the children as it does the jilted spouse. Therefore, continuing an extramarital relationship after the separation will not likely affect a child custody order unless there are unique circumstances in the relationship.

Extramarital relations may, however, have repercussions in regards to the handling of marital assets. During the pendency of the marriage, each spouse has the responsibility to manage the marital assets for the benefit of the family. Using marital assets on an extramarital partner is not for the benefit of the family. Such spending that is contrary to the well-being of the family is called misappropriation. If the cheating spouse has committed misappropriation during the marriage, then the other spouse is entitled to reimbursement of one-half of the funds spent from the date of the misappropriation.

Overall, infidelity may not hinder one from obtaining a divorce, but it may have repercussions – specifically for the adulterous spouse of the marriage – during the negotiation process of the divorce. Many divorces agreements are hashed out between parties when not in front of a judge. As such, even though infidelity may not play a formal role in decision left up to the court, they will certainly affect emotions and strategies during negotiations between the parties and their attorneys. The “injured” party of the marriage may have leverage during the negotiation process to obtain a divorce order that is more favorable to him/her. It is vital for all sides in these disputes to have legal counsel on their side familiar with the unique issues affecting these dissolutions.

Legal Help
Whatever the situation may be, divorce proceedings involve a great deal of stress and complicated issues, such as infidelity. If you are in Northern California please contact our Santa Rosa divorce attorneys to ensure that your interests are protected.

See Related Blog Posts:

The Kardashian Case: The Effect (or Non Effect) of Adultery On California Divorce
Uncovering Marital Assets in a Divorce

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