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.
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