couple stress

Being cheated on in a marriage breaks the bonds of trust – sometimes forever. Photo: Michell Zappa


San Diego, Calif., May 10, 2017 – Being cheated on in a marriage hurts. It hurts a lot. Sometimes, the marriage can’t survive and the couple heads for divorce. Although statistics on infidelity are notoriously difficult to pin down, a study done for the Journal of Marriage and the Family found that one in four wives say their divorce is the result of infidelity, but only one in ten men report infidelity as the cause of divorce.

When infidelity is the reason a client comes through the door of a family law attorney like me, it’s natural they want to unload on me. They feel compelled to go over all the ugly details, the lies and the mistreatment. It is common and I understand it. For the client’s emotional wellbeing, it is important to work through their pain.

But this needs to be done with a trained mental health professional – and it can’t be fixed in court.

When you hurt you want to get some justice. But the current divorce process in family courts no longer renders punishment to spouses for their behavior. This is not the state’s role and it hasn’t been for many years. Most states including California work under no-fault divorce laws.

What does this mean? In no-fault divorce, there is no need to identify who caused the marriage to end or the reasons why. In the past, the state only let people get divorced if they could prove something wrong took place, such as cruelty or abuse, a criminal conviction, abandonment, or adultery.

Today, the court only needs you to state the marriage has broken down, that you are incompatible, or you have irreconcilable differences. The state no longer “judges” people or asks for proof of personal actions, with just a few exceptions.

What is important for people to know and understand is that you cannot use the legal system to “punish” your ex by “cleaning them out” financially as a result of getting divorced. Especially in community property states like California, if you ask the court to determine a financial settlement, the court will not consider adultery when rendering judgment, with rare exception. Community property is divided 50-50. Property separate before and during the marriage remains with the individual.

What about spousal support? What if one spouse was the primary breadwinner, and also the “cheating” spouse? Shouldn’t the wronged spouse be taken care of?

Marital support is money one spouse pays to another after divorce to help maintain a relatively similar lifestyle as when the income supported both under one roof. State law allows the court to consider a number of factors affecting the basic ability of each spouse to earn a living sufficient to maintain the standard of living established during the marriage. It can take into consideration a long list of factors.

These include the marketable skills of the spouse seeking support; the job market; the time and expense required to acquire marketable job skills; the amount of time one spouse spent out of the job market caring for children; the ongoing need to care for dependent children; the contribution of one spouse toward another spouse’s education; the property, assets, and financial obligations of both spouses; tax consequences; the current age and health of the parties; and the goal that the supported party will become self-supporting within a reasonable amount of time.

If one spouse has documented evidence of domestic violence, especially if there is a criminal conviction for domestic violence, the court will take this into serious consideration.

Notice infidelity is not on the list. In California, adultery isn’t a crime like driving drunk or stealing. There is no official state definition of adultery. The purpose of alimony is to simply to make sure that neither spouse falls into poverty when the marriage ends. Alimony isn’t meant to punish spouses for bad behavior while they were married. You can imagine the legal mess on our hands if we left it up to a judge to decide who “misbehaved.”

Unless the adulterous spouse spent all of the family money within the adulterous relationship with a significant negative impact on your financial life, you need to find another way to resolve your anger about it.

In the end, it is a lot cheaper to pay for a skilled therapist to work with you and find your way back to good emotional health than to pay for an attorney’s time fighting a battle in court you aren’t guaranteed or even likely to win.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra. Fleischer can be reached via Google +

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