October 8, 2014 By Paul Wallin
cheating and divorce
A woman gets even after her soon-to-be ex-husband is discovered cheating.

Infidelity can be detrimental to any relationship, especially in marriage. Unfortunately, it happens all too often. According to the American Association for Marriage and Family Therapy (AAMFT), infidelity has been reported in approximately 40 percent of marriages. Although it is clear that adultery can significantly impact your marriage, there may be some confusion about whether it can influence the outcome of your divorce. If extramarital affairs were a major cause of your failed marriage, it is important that you understand how it can impact the results of your divorce.

How Can Adultery Impact the Outcome of My Divorce?

We know cheating is a common means to the end of a marriage. But what does cheating mean for the outcome of a divorce? Well, the answer to that question depends on the particular divorce laws in each state. According to California Family Code Section 2310, California is a no-fault divorce state.

What Does “No-Fault” Divorce Mean?

In a no-fault divorce state, neither party is required to show wrongdoing by the other party in order to dissolve the marriage. According to California Family Code Section 2310, a party filing for divorce does not need to prove anything except that there were “irreconcilable differences” leading to the divorce. This means that evidence of cheating is usually not admissible in a divorce case because such evidence is irrelevant. There are, however, certain specific circumstances under which it is appropriate and helpful to include evidence of a spouse’s adultery in a divorce action.

When CAN I Use Evidence Of My Spouse’s Adultery In My Divorce?

Though evidence of infidelity is usually impermissible in a no-fault divorce jurisdiction such as California, evidence of cheating may be used in divorce negotiation settlements outside of court. Evidence of infidelity can be used in any of the following situations:

  • Using marital assets to support an extramarital affair: If the cheating spouse uses marital assets to support an extramarital affair then the evidence of the affair will be used when determining how to distribute the couple’s assets.
  • Involving children of the marriage in the extramarital affair: Evidence of the cheating spouse involving the children of the marriage in his extramarital affair may be admitted in a child custody and visitation dispute. Courts consider the best interest of the child when determining with which parent to place a child. If a court is confronted with evidence of an extramarital affair of one spouse, the court will consider the effect that the spouse’s affair might have on the child(ren) of the marriage. Oftentimes, courts consider it best for the child to remain in a status quo. The existence of another spouse’s extramarital affair may be viewed as having a potentially negative impact on the child and could weigh against the cheating spouse in a custody determination battle.
  • Negotiation of a divorce settlement: Oftentimes the cheating spouse is struck with guilt and embarrassment. The spouse that was cheated on often feels angry and wants retribution. These attitudes can take a toll on both parties’ during the course of negotiations.

If you or your former spouse were involved in adultery, evidence of the affairs cannot be used in your divorce case except in the situations described above. If you are going through a complicated divorce settlement, do not go through it alone. You should hire an experienced California family law attorney who can fight for you and help you get the best possible outcome in your case.

Call Wallin & Klarich Today

At Wallin & Klarich, we understand how difficult your divorce may be. It is important that you understand how infidelity in your marriage can affect the outcome of your divorce or your child custody determination.  Contact one of our experienced family law attorneys immediately. Our knowledgeable attorneys at Wallin & Klarich have over 30 years of experience successfully helping our clients with divorces that arise out of adultery or infidelity. Let us help you today.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our knowledgeable attorneys are available to help you no matter where you are located.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.


 Cal. Family Code § 2310 (2013)

Cal. Family Code § 2311 (2013)

Cal. Family Code §§ 4300—4303 (2013)

Cal. Family Code § 4320 (2013)


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