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Posted on June 27, 2016 in Divorce,Family Law

The short answer is that in family court: It depends.

Some people are surprised to find out that California is a so-called “no-fault” state. This means that a person filing for divorce does not have to give any reason for wanting to do so beyond saying there are “irreconcilable differences” between the parties. The idea is that a person should not have to stay married if they do not want to, and requiring them to prove or even state their reasons for the divorce is contrary to public policy.

So, all else being equal, will a Family Court judge punish the cheating spouse? The short answer is no.

However, there may be other considerations that might make a person’s infidelities relevant. For example, there may be a financial issues involved. If the unfaithful spouse is buying gifts or handing over cash to their romantic interest outside the marriage, there are issues of whether this is a breach of fiduciary duty. California imposes on spouses fiduciary duties to each other – the parties have to act with each other’s interest in mind. (Fam. Code, § 721, 1100 et seq.) Spending community property money outside of the marriage can be a breach of those fiduciary duties.

Another consideration would be whether the affair has or will impact the children. A Family Court Judge generally considers custody and visitation issues by looking at the child’s best interest. Family Code section 3011 lists the factors that go into a best interest analysis, including the “health, safety and welfare” of the child. Does a parent directly impact the health safety and welfare of the child by having an affair? Maybe, maybe not.  A judge is not likely to make a custody decision in response to this fact alone. What if the spouse is having an affair with a drug dealer? This is an extreme example, but here there would be an argument that exposing the children to illegal and dangerous activity is detrimental to their health, safety and welfare.

In sum, although the fact that your spouse cheated will not, alone, influence a judge’s decision, there may be related circumstances that are important to a judge in their decision-making process.

If you are considering a divorce, contact San Diego family law attorney Scott Family Law and the team at Scott Family Law. Mr. Scott is a Certified Family Law Specialist with more than 35 years of family law experience. Call Scott Family Law at 858-974-4900 to schedule a consultation appointment today.