Cheating, infidelity, adultery – they are different names but they all have the same negative connation. In the context of a divorce, “cheating” usually means sexual intercourse with someone who is not your spouse. For legal purposes, this leaves out racy Facebook affairs that are never consummated and emotional affairs that are non-physical, even though most innocent spouses would classify such behavior as adultery.
“But what if a married man or woman almost has sex with someone? What if they kiss or engage in foreplay?” Technically, it’s not “adultery” unless the individuals actually have sexual intercourse. But in the context of a California divorce, the fact that a spouse had a one-night-stand or even a full-blown affair that lasted years is usually irrelevant.
California is a No-Fault Divorce State
Why is cheating or an affair irrelevant to a judge? Because, California is a no-fault divorce state. In fact, it was the first state to pass no-fault divorce laws. Nowadays all states are either mixed states or no-fault states. The mixed states, such as Pennsylvania and New York let people get fault and no-fault divorces.
No fault states, such as California do not let people get divorced on the traditional fault-based grounds like adultery, cruelty, abandonment, and a felony conviction. You can however, get a divorce in California if your spouse is certifiably insane.
What does this mean to cheating spouses? It means that family court judges are not usually interested in hearing evidence of infidelity. But, what about spousal support? Some states, like Texas can bar a cheating spouse from receiving spousal support or alimony – does California do the same thing? As a matter of fact, no.
In a California divorce, if a dependent or lower-earning spouse cheats, their misconduct will not bar them from spousal support. The purpose of spousal support is to ensure that one spouse does not end up poor because of the divorce. The other purpose of spousal support is to help a dependent spouse become self-sufficient. Spousal support is never meant to punish a spouse for their misbehavior.
Related: Does an Emotional Affair Count as Cheating?
There is one key exception where marital misconduct can prevent a spouse from receiving alimony, but it has nothing to do with infidelity. When a spouse would be entitled to financial support, but he or she has committed domestic violence; for example, they’ve been physically violent toward the higher-earning spouse or the couple’s minor children, then the court may block the abusive spouse from receiving support they’d otherwise be entitled to receive.
