If you recently discovered that your spouse has been cheating on you, you may be curious as to the legal options and remedies that are available to you as a victim of adultery. In California, infidelity is not a crime or tort (civil wrongdoing), meaning you cannot file a lawsuit against your spouse for having an affair. However, adultery could come up in different ways during a California divorce case.
Is Adultery a Civil Tort?
No, adultery is not currently a civil tort in California. In the past, there were laws that allowed people to sue for infidelity. Many states also used to criminalize adultery. Today, however, unfaithfulness in a marriage is not a crime or legal tort in the State of California. A tort is a type of wrongdoing that can lead to a personal injury lawsuit, such as negligence or intent to harm. The current law means you cannot sue your spouse for having an affair or press criminal charges.
However, there are exceptions if the situation is extreme or turns violent. For example, if your spouse’s affair results in a domestic violence situation where your spouse is physically violent or confrontational with you, you may be able to sue for assault or battery. This is also true if your spouse or the person he or she cheated with is stalking you, threatening you, harassing you, or committing other crimes against you. In these cases, you may be eligible for financial compensation through a civil lawsuit in addition to your spouse facing criminal charges.
California Is a No-Fault Divorce State
California is a no-fault divorce state, meaning couples do not need to prove fault to get divorced. In the past, fault laws required proof of fault or a valid reason for the dissolution of marriage, such as evidence of unfaithfulness or fraud. Today, this is no longer a requirement. Couples can simply cite “irreconcilable differences” to get divorced, meaning the marriage is irretrievably broken and cannot be repaired. California law no longer offers fault-based divorce filings, and the courts will not consider the reason for the split when handling the case.
How Infidelity Could Affect Your Divorce Case
If your spouse’s infidelity results in a divorce or legal separation, you cannot sue for the costs of your split. However, adultery may affect your divorce case in various other ways, such as:
- Property division – a judge may consider the financial impact the adulterous act has had on the marital estate. This could lead to a requirement for your spouse to reimburse the estate for these losses.
- Alimony – if your ex-spouse is cohabitating with someone else during or after your divorce, this can directly impact an alimony order. You may owe your ex less in spousal support or nothing at all, depending on the situation.
- Child custody – infidelity could potentially impact child custody if your ex-spouse is bringing a new love interest around your child. If the courts view this as a potential risk to your child’s safety or well-being, it could alter the custody agreement in your favor.
If your marriage involves a prenuptial or postnuptial agreement with an infidelity clause, this can also change what your divorce case looks like. A San Diego legal separation lawyer can help you enforce this agreement.
How a Divorce Lawyer Can Help You
Finding out that your spouse has been unfaithful is a terrible blow. You may not know how to protect your rights or deal with the divorce process. The best thing you can do for yourself and your family during this difficult time is to consult with an experienced and aggressive San Diego divorce attorney. A divorce lawyer can help you understand your legal options and what to expect from the legal process ahead. If bringing up the infidelity is in your best interest during a divorce case, your lawyer can employ this strategy. Learn more during a free case review with a lawyer at Boyd Law.
FAQs
No, adultery is not currently a civil tort in California. In the past, there were laws that allowed people to sue for infidelity. Many states also used to criminalize adultery. Today, however, unfaithfulness in a marriage is not a crime or legal tort in the State of California.
Can you sue your spouse for cheating in California? ›
In California, it is generally not possible to sue the person your spouse cheated with. Here are some key points on this: California is a no-fault divorce state. This means marital misconduct like adultery cannot be used as grounds for divorce.
What is the difference between infidelity and adultery? ›
Infidelity, or cheating, is the act of being either emotionally or physically unfaithful to a spouse or partner, and breaking a commitment or promise during the act. Adultery is engaging in physical, sexual activity, and may be considered a criminal offense and grounds for divorce in certain places.
Can I sue the person my spouse cheated on me with? ›
Short Answer: No. As mentioned above, technically, the other person involved in the cheating could be charged with a crime; however, for the reasons stated above regarding the unlikelihood of having your spouse charged with adultery, it would be even more unlikely that the other person would be charged.
Can you sue your spouse for financial infidelity? ›
While you can't usually sue directly for financial infidelity, divorce and marital property laws offer ways to deal with the financial consequences of such actions. The legal system aims to provide remedies for the economic damage caused by financial infidelity within the context of ending the marriage.
Can you sue a cheating spouse for emotional distress? ›
You generally can sue someone for intentional infliction of emotional distress if you can prove the following elements: The defendant acted intentionally or recklessly. The defendant's conduct was extreme and outrageous. The conduct was the cause of severe emotional distress.
Does California have an infidelity clause? ›
While an infidelity clause in a prenup isn't enforceable in California, there are plenty of other clauses that can help protect your assets.
What rights do you have if your spouse is cheating? ›
However, even in jurisdictions that have decriminalised adultery, adultery may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery can constitute a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc.
Is it worth suing for alienation of affection? ›
Unless money is no object or you stand to recover a substantial amount in damages, suing for alienation of affection is not worth the time and effort. Dealing with infidelity is never easy, and adding on a lawsuit will only make things harder.
Can you sue for alienation of affection in California? ›
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.
Alienation of Affection
Usually, this type of claim is filed against the third party, rather than against the spouse, however. Filing an alienation of affection lawsuit requires proof that your marriage was a happy and loving one and that the third party intentionally destroyed your marriage.
What states can a spouse sue for infidelity? ›
Which states recognize alienation of affection? Alienation of affection is no longer grounds for a lawsuit in most U.S. states but there are some exceptions. It is possible to file a civil lawsuit for alienation of affection only in Hawaii, Mississippi, New Mexico, North Carolina, South Dakota and Utah.
Can I legally kick my wife out for cheating? ›
In California, it is legal for one spouse to force the other to move out for a set time period. This is accomplished through a court order, but the individual must be able to provide evidence of threats of assault or assault attempts if the case is an emergency.
What is the punishment for adultery in California? ›
While the court will not punish a spouse for adultery in California, cheating spouses will likely suffer personal consequences. For example, family, friends, and colleagues may end relationships with the individual after discovering the affair.
Will adultery affect divorce settlement in California? ›
There's a common belief that if a spouse has been unfaithful, the wronged party will receive a larger share of the assets during a divorce. However, in the context of California law, this is a myth. Because California is a no-fault state, infidelity typically doesn't sway the division of property.
