The following is legal information and education based on California law, not legal advice. You should consult with an attorney about your particular situation.
An attorney-client relationship is not formed until you have signed a written Retainer Agreement with Zonder Family Law Group, A Professional Corporation.
Fault and Infidelity Divorce in California Courts
California is a “no fault” state, which means you do not have to prove your spouse is at fault in some way to justify your request for a divorce. While cheating is frowned upon by most people, a spouse’s cheating cannot be considered by the Court in a family law case, generally speaking. This means the Court cannot look at a spouse’s fault when ordering child or spousal support, dividing the parties’ property, or issuing child custody orders.
While a spouse’s cheating in and of itself may have little bearing on a divorce case, there are certain situations where cheating is directly relevant. Namely, if:
- A spouse has breached his or her fiduciary duties and used community monies toward the infidelity,
or
- A spouse has passed a sexually transmitted disease (STD) to his or her spouse as a result of the spouse’s infidelity.
Community Monies Used for Cheating
In addition to being a no fault state, California is also a community property state. This means that all property acquired during marriage is presumptively community property (except for property received by gift, inheritance, or the rents, issue, and profits therefrom).
Spouses are held to certain duties (fiduciary duties) and they are required to deal fairly and in good faith when managing the community property estate until the date the community is distributed in divorce proceedings.[i]
Spouses cannot make a gift of community property to a third party without the other spouse’s written consent.[ii] That means if a spouse spends community property funds for their cheating (be it for hotels or gifts to other individuals, etc.), they are breaching their fiduciary duties. And the nonconsenting aggrieved spouse has various remedies.
The Court may order an accounting to determine the “rights of ownership in, the beneficial enjoyment of, or access to, community property, and the classification of all property” of the spouses.[iii]
[i] Family Code Sections 721(b), 1100(e)
[ii] Family Code Sections 721(b), 1100(b)
[iii] Family Code Sections 721(b), 1101(b)
In addition, the aggrieved spouse’s remedies “shall include” an award of 50%, or an amount equal to 50%, of any asset transferred in breach of the fiduciary duty, plus attorney fees and costs.
If the aggrieved spouse can prove by clear and convincing evidence that the breach amounted to malice,[i] oppression,[ii] or fraud,[iii] they are entitled to punitive damages.[iv] In that case, the aggrieved spouse’s remedies “shall include” an award of 100%, or an amount equal to 100%, of any asset transferred in breach of the fiduciary duty.[v]
Generally, an action must be commenced within three years of the date the aggrieved spouse acquired “actual knowledge that the transaction or event for which the remedy is being sought occurred.”[vi]
STD Transmission as a Result of Cheating
While cheating may not be considered by the Court on its own, if your spouse gives you an STD as a result of his or her cheating, you may consider pursuing a civil cause of action against them.
The civil cause of action for negligence, battery, or fraud may be consolidated (i.e., combined) with your family law case. A consolidation would require both parties to agree to waive a jury trial. However, consolidation is discretionary, meaning it is entirely up to the Court. Even if the parties agree, the Court could still decline to consolidate the civil cause of action if it believes consolidation would violate the “no fault” legislative policy for family law matters.
If the case is not consolidated, the threat of a civil action could potentially lead to negotiations for a disproportionate split of the community estate or a more favorable spousal support award.
You should speak with a personal injury attorney with respect to when an action must be commenced if you have been infected with an STD by a cheating spouse.
[i] Malice is “conduct which is intended by the [wrongdoer] to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code Section 3294(c)(1).
[ii] Oppression amounts to “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code Section 3294(c)(2).
[iii] Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the [wrongdoer] with the intention on the part of the [wrongdoer] of thereby depriving a person of property or legal rights or otherwise causing injury.” Civil Code Section 3294(c)(3).
[iv] Civil Code Section 3294(a)
[v] Family Code Section 1101(h)
[vi] Family Code Section 1101(d)(1)
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[1] Family Code Sections 721(b), 1100(e)
[1] Family Code Sections 721(b), 1100(b)
[1] Family Code Sections 721(b), 1101(b)
[1] Malice is “conduct which is intended by the [wrongdoer] to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code Section 3294(c)(1).
[1] Oppression amounts to “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code Section 3294(c)(2).
[1] Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the [wrongdoer] with the intention on the part of the [wrongdoer] of thereby depriving a person of property or legal rights or otherwise causing injury.” Civil Code Section 3294(c)(3).
[1] Civil Code Section 3294(a)
[1] Family Code Section 1101(h)
[1] Family Code Section 1101(d)(1)