With adultery clocking in as one of the leading causes of divorce, it’s no wonder people are interested in how it might affect their split. Specifically, the question many divorce lawyers get asked, is whether or not adultery is illegal. 

It’s a fair question. Especially considering that over twenty states actually do attach criminal punishments for infidelity. Consequences that can range anywhere from a slap on the wrist, to a misdemeanor, and in some states, even a felony. In Idaho, for example, adulterers could face up to three years’ jail time, while in Wisconsin, cheaters might just find themselves with a hefty, $10,000 fine. 

Unfortunately, as satisfying as it would be to bring a cheating spouse to court on criminal charges, if you live in California, it’s not an option. While adultery is, undoubtedly, a morally questionable decision, it’s not actually a crime in the state of California.

However, just because California doesn’t make adultery illegal, doesn’t mean there aren’t consequences for cheating. Here’s what you need to know about adultery laws in California. 

No-Fault Divorce and Adultery

First off, California is a no-fault divorce state, which means that couples do not have to state a reason for the dissolution. In fact, there are only really two grounds available for getting divorced in California: 1) irreconcilable differences; and 2) incurable insanity. So even if an individual wanted to make adultery their grounds for divorce, it’s just not an option.

Things weren’t always this simple. In the state’s early days, if a couple wanted to split, the law basically required a showing of fault (usually adultery). Which—far from actually deterring people from divorce—ended up spawning an environment that encouraged lawbreaking. Because what’s a little perjury when faced with an eternity of marital hell, right?

This blatant flaunting of the law is what eventually drove lawyers and judges to advocate for a simple, straightforward process of securing a divorce. And not long after, the modern-day, no-fault system was born. The upside of this being that divorce is now simple and does not require one to commit perjury to secure a split. The downside, however, is that a slighted individual hoping to benefit from their spouse’s wandering ways will find themselves out of luck, as cheating does not directly affect how courts split marital property. 

Still, that doesn’t mean adultery doesn’t matter at all in California, and here’s why.

Adultery Laws and Marital Property in California

Marriage is, at its most basic function, a contract. An agreement, in which two people decide to join their lives—and belongings—under a single umbrella. So, from that point forward, all assets acquired are considered community property. In layman’s terms, this means that everything belongs to both individuals—regardless of which spouse earned the paycheck. And this is where an adulterer might get dinged. 

Since all the money in the pot belongs to the spouses equally, an adulterer who spends marital property on an affair is essentially spending cash that doesn’t belong to him—or, at least not just to him. Which means payback will be in order. Sometimes, this means replacing the money into the account before the assets are divided. Other times, the cheater might end up with a smaller piece of property pie, in order to compensate for erroneously spending marital property on an affair. 

The catch is, that it can sometimes be difficult to prove how much money was wasted outside the marriage, as the savvy adulterer might not leave a paper trail. Gathering as much information as possible will help your divorce attorney give you the best chance at being fairly compensated for these losses. 

Adultery Laws and Custody 

In California, adultery does not affect child custody, which is always decided under the Best Interest of the Child standard. This precedent operates under the assumption that a child’s best interest is to have a loving relationship with both parents whenever possible. And, regardless of an individual’s personal feelings toward their cheating other half, infidelity does not actually mean someone is a bad parent. 

The only way adultery would affect custody in California, is if the affair had an adverse effect on the individual’s parenting. For instance, leaving a child home alone to meet up with a lover, having sex in front of the child, or exposing the child to drugs or abuse. Short of putting the child’s mental and physical well-being at risk, though, adultery does not come into play for these decisions. 

Adultery Laws and the Third Wheel

In contrast to adultery laws, Alienation of Affection suits, are charges which assign damages to the home breaker in the adulterous duo. This is done on the assumption that, without the individual’s interference, the marriage would not have failed. 

However, just as adultery is not against the law in California, Alienation of Affection suits have similarly been done away with. In this state, you cannot sue your spouse’s lover for damages, though, that’s not the case for every jurisdiction. For example, in 2019, a North Carolina man won a $750,000 suit against his spouse’s lover. These antiquated laws—which hail back to the day when women were considered property—are understandably controversial, and it’s questionable how much longer they’ll remain in the books. For now, though, Alienation of Affection suits are not something couples in California have to worry about. 

Adultery Laws and the Military 

Finally, while there are no specific adultery laws in California, those in the military might still want to be careful. Under the Uniform Code of Military Justice (UCMJ), adultery is, in fact, a criminal offense, based on the premise that the act undermines order and discipline. Thus, military personal caught committing adultery could earn themselves a dishonorable discharge, not to mention the forfeiture of any future payments, and up to one year’s confinement—regardless of whether or not their specific state criminalizes the act.  

Furthermore, even couples who are legally separated might want to avoid romantic relationships until their divorce is final, as the military does not recognize legal separation as a defense to adultery. 

Divorce Attorneys in California

Even though there are no specific laws prohibiting adultery in California, infidelity still can still muddy the divorce waters. If you or a loved one have more questions about how adultery might affect your California divorce, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let our skilled team of California divorce attorneys help secure the best outcome for your unique circumstances.