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How marital infidelity can affect property division during divorce

On Behalf of | Feb 11, 2024 | Community Property Division

The division of marital property and debts is often a key consideration in a California divorce. Married couples may have hundreds of thousands of dollars or more in shared property that they have to share.

As a community property state, California generally requires that spouses split any income and personal possessions and debts that were acquired during the marriage, unless spouses agree to alternative arrangements in a divorce process that doesn’t require judicial intervention to settle broad property division differences.

One of the many reasons that someone in California might choose to file for divorce is the discovery of infidelity. Can someone expect the courts to consider adultery when dividing marital property?

California is a no-fault divorce state

No-fault divorce proceedings help ensure that even those without evidence of misconduct can end an unhealthy or dysfunctional marriage. Unfortunately, no-fault divorce statutes typically prohibit the courts from giving much consideration to misconduct during property division proceedings. Although one spouse may blame the other for the divorce because of their infidelity, the courts typically do not consider marital misconduct when deciding what should happen with the property of the spouses.

The courts don’t punish someone for cheating by allocating less of the marital estate to them in a divorce unless they signed a prenuptial contract imposing specific financial penalties for infidelity. Thankfully, the courts can occasionally hold someone accountable for financial misconduct that occurs as part of an extramarital affair.

Someone cheating on their spouse may rent motel or hotel rooms. They might even pay rent on an apartment for their affair partner. Adulterous relationships often involve travel, expensive gifts and meals at restaurants. Someone may have spent marital income while conducting their affair or may have accrued debt that they try to include in the marital estate during the divorce.

One spouse could potentially claim that money spent on the affair constitutes dissipated marital resources. The courts can consider the wasteful misuse or dissipation of marital property and the accumulation of inappropriate debt when dividing assets and financial obligations. The spouse who cheated might be solely responsible for the credit card bills that they accrued because of the affair. They might also lose some marital property in consideration of any marital income that they spent conducting their affair.

Those hoping to demand economic justice after discovering a spouse’s infidelity often need to go back over financial records from the marriage quite carefully. Gathering evidence of the dissipation of marital assets is one of the ways to hold an unfaithful spouse accountable for the consequences of their decisions.