According to this study, among many others, adultery is one of the most common causes of divorce in the U.S. If you're considering dissolving your marriage due to infidelity, you may wonder what the benefits of proving are.
Today, we're going over the types of evidence you can use to prove adultery to a California divorce court. We're also covering how doing so could impact various divorce-related processes, such as alimony, property division, and child support and custody.
To schedule a consultation with our team for your divorce and speak with an experienced attorney about your case, contact us online or via phone at (310) 455-8364.
California As a No-Fault Divorce State
First, it's important to note that California is a no-fault divorce state. There are only two grounds for divorce in California:
- Incurable insanity. To use this as a grounds for divorce, an expert witness such as a physician must normally verify that the alleged insane spouse does indeed lack mental capacity.
- Irreconcilable differences. Most divorcees cite "irreconcilable differences" as the grounds for their divorce.
Since California is a no-fault divorce state, the court will not - by default - consider marital misconduct such as adultery when determining the outcome of the divorce.
However, adultery can impact the outcome of various divorce-related processes, including property division and child custody, depending on the circumstances of the divorce and the adultery, so proving your spouse committed adultery can still benefit you indirectly.
Proving Adultery in California
Unlike some states, California has not designated adultery as a criminal act. However, courts and lawyers typically agree that adultery is defined as "sexual intercourse committed with a non-spouse by a married person."
Generally, proving adultery requires showing that the alleged adulterous spouse had both the opportunity and the disposition to commit adultery. Before attempting to gather any evidence proving adultery in your marriage, you should consult your lawyer. Various privacy laws may prevent you from legally gathering certain types of evidence, or may require you to go about collecting evidence in a specific way. Being aware of privacy laws and how they could impact your search for evidence is vital if you want to avoid committing illegal acts.
You may be able to use the following types of evidence to prove adultery in your California divorce:
- Evidence from a private investigator (PI). Many spouses use PIs to prove that their spouse is cheating, and for good reason. A PI can tail an individual and gather evidence that shows them behaving intimately with another person in public (in private, obviously, privacy laws restrict such acts). However, a series of photos showing a married person getting a romantic dinner with another person and kissing them in public, then heading to a hotel and coming out looking... frazzled... the next morning could be considered substantial evidence of adultery.
- Pictures of circumstantial evidence. This may include articles of clothing not owned by a spouse that their partner finds at their home, receipts for trips to a restaurant or for a vacation that one spouse took without telling the other, etc.
- Digital evidence. Again, breaking into another person's device or using another person's password to gain access to information is illegal, so consult your lawyer before attempting to collect digital evidence. However, evidence such as text messages, photo posts on platforms such as Snapchat, Facebook, or Instagram, and emails can all be used as evidence of adultery.
It's also worth noting that, in many cases, the court will request another witness to support allegations of adultery. This could be a friend or family member of the adulterer who will testify that they committed adultery, the person they committed adulterous behavior with, or some other type of witness.
The court sometimes requires these additional witnesses to ensure that a party isn't blackmailing the other into admitting to adultery or coercing them in some way.
Now that we've covered how you can prove adultery, let's take a look at how marital processes may be impacted by the presence of adultery.
Adultery & Child or Spousal Support in California
Generally, the presence of adultery in a divorce will not change the outcome of child or spousal support arrangements. The court considers a wide range of factors during these cases, including:
- The physical, mental and emotional health of both parties;
- The age of both parties;
- Both parties' financial circumstances and ability to provide for themselves and any children they share post-marriage;
- Whether either party has previous outstanding child support arrangements they're engaged in;
- The payor's ability to pay for spousal or child support;
- Whether domestic violence or abuse played a part in the divorce;
- Each spouse's debts and assets at the time of the divorce;
- What would be best for the child;
- Any other details the court considers pertinent to the case.
Whether a party committed adultery will not factor into alimony or child support arrangements unless the court decides it should for one reason or another.
Child Custody & Adultery in CA
In most cases, like alimony or child support, the presence of adultery in a divorce will not impact child custody.
During any child custody case, the court's highest priority is always ensuring that the child(ren) involved receives the best possible outcome.
However, in some cases, spouses may engage in neglectful behavior due to adultery. For example, a spouse may start missing school or extracurricular events to spend time with their lover, or have a lover that displays inappropriate or unsafe behaviors around the child.
In these cases, adultery may very well play a role in the custody arrangement. If your spouse's love could represent a danger to your child, or your spouse neglects your child to spend time with their love, the court could interpret that as a sign your spouse is unfit to act as a caregiver, and award you more or total custody of your child(ren).
If you believe your spouse's lover is a danger to your children or your spouse is neglecting them to spend time with their love, you should prepare evidence to support those allegations. Evidence may include:
- Testimony from the children stating that your spouse's lover behaves inappropriately or dangerously around them;
- Evidence indicating your spouse neglected to care for their children while committing adultery, such as receipts showing them picking up dinner with a lover when they should have been picking up the kids from school;
- Testimony from other individuals that the spouse has a lover who is a bad influence on the children, is dangerous to them, or that the adulterous spouse is neglectful of the children.
Again, consulting your lawyer before gathering such evidence - or attempting to - is a best practice.
Adultery & Property Division in California
By default, adultery won't factor into the property division process. However, if the adulterous spouse used marital assets to pay for adulterous activities, they may need to compensate their spouse before finalizing the divorce.
Marital assets are generally defined as any assets and liabilities shared by both parties or acquired post-marriage. The vast majority of assets and debts gained post-marriage - even if they were initially only purchased or incurred by one spouse - may be considered marital assets and, as such, subject to the property division process.
If an adulterous spouse spends marital assets on their infidelity - for example, withdrawing money from a joint bank account into a separate account, and then using said money to pay for a vacation or a night out for a lover - they may need to pay half the amount they spent to their spouse during property division.
If you know your spouse has spent marital assets on their adulterous behaviors, a financial expert such as a forensic accountant could help you uncover those expenditures and gain compensation during your divorce.
At TRABOLSI | LEVY | GABBARD LLP, our team is here to ensure you pursue the best possible outcome in your divorce. To schedule a consultation with our team, contact us online or via phone at (310) 455-8364.