How to Prove Adultery in a California Divorce

California has specific grounds for which you can file a divorce. Here’s everything to know about proving adultery in a California divorce.

Proving adultery in a California divorce may not be necessary or possible, as California is a “No-Fault” divorce state. Proving adultery may affect a judge’s order on alimony, child custody, or property division, in special cases. Claims may be proven through bank statements, digital evidence, and testimony from witnesses.

Divorce in California

California courts help to separate spouses reach a fair agreement regarding the structure of their lives after divorce. Custody and visitation, child support, spousal support, the division of property, and who will be responsible for paying debts are all orders a California judge can make.

Any divorce in California requires a minimum waiting period of six months from the date the person filing for divorce “the petitioner” officially serves divorce papers to their spouse “the respondent.”

California as a “No-Fault” Divorce State

California is a “no-fault” divorce state, meaning a spouse asking for a divorce does not need to prove the other spouse’s wrongdoing. To get a “no-fault” divorce, one party may declare “irreconcilable differences,” essentially stating the couple cannot get along.

How Adultery Affects Aspects of Divorce

Because California is a “no-fault” divorce state, a judge will not grant a divorce based on adultery in the relationship. However, a judge may find that adultery is a factor when deciding alimony, child custody, and property division.

In California, a party must prove significant circumstances for adultery to affect alimony, child custody, and property division. A significant circumstance could be a spouse spending large amounts of shared money on an affair or engaging in lewd behavior in front of children.

How Adultery in a Divorce Affects Alimony

When determining alimony terms, judges take into account the extent to which a lower-earning spouse can support living arrangements established during the marriage. A spouse could prove that a spouse living with the affair partner increases the couple’s ability to maintain the marital standard of living. as the affair partner can provide financial support.

How Adultery in a Divorce Affects Child Custody

For adultery to affect child custody terms, one party must prove a spouse’s adultery affected their fitness as a parent. The spouse who committed adultery would need to have done something that made them an unfit parent, such as engage in sexual activity with the other party in front of the child(ren).

Adultery could also affect custody if it is proven that the new partner abuses the child(ren).

Courts may also rule against the party involved in adultery if the affair changes the spouse’s living arrangements in a way detrimental to the child(ren), as courts factor in a child’s ties to home and community when deciding custody.

How Adultery in a Divorce Affects Property Division

Marital funds are considered community property in a marriage. When a spouse spends marital funds on their affair partner, the court may order the adulterous spouse to repay their spouse half of what was spent. To affect property division terms in a California divorce, a spouse’s use of community property to fund an extramarital affair must be legally proven with a paper trail.

How to Prove Adultery in a Divorce

To prove adultery in a California divorce, extreme circumstances must be proven. Evidence of an affair could include credit card or bank statements that show large amounts of money a spouse was spending on their affair partner. Evidence could also include proofing a spouse or their affair partner acted inappropriately in front of children. Parties may be able to use evidence from a private investigator, pictures of circumstantial evidence, or digital evidence to prove adultery.

Courts may require a witness (could be a friend or family member of the adulterer, the affair partner, or some other type of witness) to support allegations of adultery.

FAQs about Proving Adultery in a California Divorce

1. What are the requirements for divorce?

To file for divorce in California, either spouse must have lived in:
California for the last six months, AND
The county where divorce is planned to be filed for the last three months.

If the residency requirement is not met, parties can file for legal separation and wait enough time to meet the requirements. When the requirements are met, parties can file an “amended petition” and ask the court for a divorce.

Related: Divorce FAQs in California

2. Do both spouses need to agree to divorce?

Both parties do not need to agree to end a marriage. Either spouse can decide to end the marriage without the other party’s participation in the case. If a spouse does not participate in the divorce case, the spouse filing for divorce will be able to get a “default” judgment and the divorce will proceed.

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