One of the more persistent rumors that occurs even into 2019 is that cheating, or if we are being formal, adultery has an effect on how a dissolution (divorce) proceeds. While adultery may be morally wrong depending on one’s ethical views, to quote Ella Fitzgerald, “…Birds do it, bees do it, Even educated fleas do it…”. Further, with the divorce rate in California and the United States hanging around fifty percent, adultery is quite common. Moral and ethical questions aside, adultery does not lead to criminal cases – in California there is no criminal statue currently that makes cheating a crime and its participants criminals. And, again, if we are being honest, adultery for the most part has no effect on how dissolutions occur or proceed.
The reason for this is that under the law in California, dissolution is a “no fault” proceeding. No fault in this context is clear and simple – neither side has to prove that the other side did anything wrong to obtain a divorce. Instead, what the law in California states is that in order to obtain a dissolution, “irreconcilable differences” must exist. Unlike many things under the law, irreconcilable differences can mean many things. It could mean that one, or both parties cheated; it could mean that the parties are not talking; it could mean that the parties simply don’t wish to be together; it could mean just about anything. All irreconcilable differences really means in a dissolution proceeding is that at least one of the two parties does not wish to be legally married.
In this context, at some point either by legal pleading – or in person – the individual (or both parties) must attest (state) to the Court that they have no desire to remain legally married to the other. If this occurs in person, any Family Law Judge will ask both parties if such differences exist, and whether any amount of counseling or reconciliation could change one or both of the parties’ minds. If the parties state that the differences cannot be overcome, a dissolution must occur. To this end, it’s also worth noting that if one party wants a dissolution, and the other does not, there is no legal way to stop a proceeding, and if a party attempts to drag out a dissolution for irresponsible reasons, sanctions and fees can be awarded along with the eventual divorce.
In this context, legally, it doesn’t matter if a party cheated, because that falls into the category of irreconcilable differences. This is not to say that new relationships do not affect a divorce in ways such as child custody and property division depending on the facts, but in terms of finding fault or proving who did something wrong, this conduct is immaterial. As a practical point as well, most Family Law judges will listen patiently to the first reference of adultery with respect to a dissolution, before calmly telling a litigant the above standards under the law. However, while California is a “no fault” state, as a further practical point, many people who go through a dissolution with or without adultery regularly seek counseling for issues that arise during the dissolution to help them deal with the non-legal issues that arise.
If you’re considering a dissolution, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today to let us know what the facts are in your case, and what questions you may have.
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.