Going through a divorce is a devastating and stressful reality and experiencing a divorce after an affair often magnifies the emotional impact on people. People facing a divorce after an affair should make it a priority to educate themselves with a few basic principles regarding affairs and divorce settlements.

Understanding the “No-Fault” Divorce Principle

The state of California practices the “no-fault” principle, which means that one spouse does not have to prove that the marriage failed due to the fault of the other spouse. Instead, the spouse(s) need only claim that the spouses have “irreconcilable differences,” or that one spouse suffers from “incurable insanity.”  In other words, either one spouse has a mental illness that makes cohabitation difficult, or the two spouses simply cannot get along and are no longer compatible.

This is a modern principle on divorce settlement which vastly differs from the antiquated principle that requires a specific reason for the failed marriage and which often involves one person being blamed for the divorce.

This means that adultery no longer holds the same effect on a divorce settlement that it once did. However, the added layer of adultery does make the divorce settlement substantially more complicated, as there are a few instances in which the person who committed the infidelity suffers from financial repercussions. Severe and specific situations in which the children were emotionally impacted by the divorce can also affect custodial arrangements.

In order to best prepare you for your divorce settlement after an affair, Lonich Patton Ehrlich Policastri offers a comprehensive guide to understanding your legal rights for divorce after an affair.

How Affairs Affect Child Custody Arrangements

It is a common belief that the immorality associated with having an affair often tarnishes a person’s reputation in court. Judges, however, typically don’t consider an affair when determining child custody arrangements because it is generally understood that the act of having an affair does not directly affect a parent’s ability to provide a safe and supportive home. There are a few exceptions to this rule in which the judges determine that the affair caused the child severe emotional harm or impeded on the safety of their living environment.

Such circumstances that may discourage a judge from awarding child custody or visitation rights include:

• Situations in which the spouse or the person they had an affair with physically abused the children
• Examples of neglect such as a parent frequently leaving younger children alone while engaging in their affair
• Events in which the parent engaged in frequent substance abuse while having the affair
• And even circumstances in which a parent frequently brings their lover around their children, thus subjecting them to emotional turmoil and stress.

If your affair and divorce settlement involved one of the aforementioned situations then it is especially important to hire a qualified divorce attorney in San Jose in order to best present your case.

How Affairs Affect Alimony Payments or Property Division

Another common misconception about divorce after affairs is that the person who committed the adulterous acts is financially obligated to pay for the stress that they caused their spouse.

Judges, however, do not consider affairs in regards to alimony payments, but instead, determine the amount and schedule of payments based on one spouse’s financial dependency on the other.

However, there are a few exceptions to this rule of thumb in which judges may alter the alimony payments. For example, if the spouse who would normally receive alimony is living with the person that they had an affair with, then they may have less need, but generally, the “new” spouse’s income is not considered in setting support. 

Another example in which a judge could adjust alimony payments is when the person who had the affair lavishly spent money on their lover for dinners, hotel rooms, gifts, or weekend getaways; these adjustments are a result of reimbursement claims. It is essential to understand that judges are not lawfully bound to grant the other spouse financial compensation for the affair itself.  

The principle practiced in California divorce law known as “community property,” states that assets accumulated during a marriage must be split evenly if the marriage ends. In other words, some judges may interpret that law as meaning that the spouse who was cheated on is entitled to their share (50 percent) of the money that was spent on the affair.

Since this principle is merely an interpretation of the law and it is not explicitly stated, it makes divorce trials after an affair significantly more complex and timely.

If you are facing a divorce after an affair and want to protect the interests of you and your children, then it is critical to invest in a qualified divorce attorney in San Jose, California. LPEP is one of the largest family law firms in the Bay Area and is experienced with complex and high-asset divorce settlements.

Sign-up today to schedule a 30-minute consultation so that we can help you understand your unique needs regarding a divorce after an affair.

We’re living in a very uncertain time right now. Everything is unprecedented and everyone is handling COVID-19 differently. There are a few common practices being taken by local and state governments that we can lean on for stability. What does the Shelter-In-Place order mean for you and your family, and family law?

What Is A Shelter In Place Order?

Shelter in place orders are employed during or after a crisis to protect the population. These are usually issued locally which is why you are seeing orders with differing stipulations coming out of different states and counties. A shelter in place order requires residents to stay at home with the exception of essential travel and business.

Are Courts And Family Law Firms Considered Essential?

Many people who were facing legal trouble before the pandemic are now wondering how this will affect their cases. Courts and law firms are considered essential businesses, however, they are operating on a restricted basis. Only people who have hearings before the court will be allowed in the courthouses. Each county in the Bay Area has different regulations they are operating under. For Santa Clara, certain courts will remain open during the COVID-19 crisis, one being the Family Law Justice Center Courthouse. They are handling a restricted type of cases at this time. Some of those being:

• Various restraining orders – Emergency protective orders, gun violence orders, domestic violence temporary orders
• Child custody and visitation matters – ex parte requests, modifications due to child safety concerns, modifications due to parents withholding visitation
• Guardianship with child safety concerns

You can learn more about the matters family law courts are handling here.

Temporary Emergency Rules

During coronavirus, the courts have enacted new emergency rules and revised existing ones to best serve the community. Emergency rule #8 was revised. It discusses the matter of extending protective and restraining orders. There is no longer an automatic extension of duration of orders during the pandemic. Now, the courts must provide persons a way to request renewals and extensions only. 

Emergency rule #13 deals with support requests and orders. This rule was created to ease the burden of requesting changes to child support, spousal or partner support, and family support orders during coronavirus. It is more challenging to file requests at this time, and the courts are having a hard time processing them. To deal with this, the courts are allowing service of unfiled requests.

For a list of all temporary emergency rules, go here. 

Government Aid and Back Child Support

The government is offering aid to the public in the form of a $1200 stimulus check. This is to offset the damage to the economy and the loss of jobs across the country. Family law matters are affecting the release of these funds. If a parent owes outstanding child support payments, they will see their funds reduced or will not be issued a stimulus check. 

To learn more about how family law in the Bay Area is affected by COVID-19, check out these resources here.  You can also set up a free virtual consultation with one of our family law attorneys to help you with any questions or cases you may have. You can set up a consultation here.