FAQ: How do attorneys deal with a cheating spouse during divorce litigation?

Clients and opposing parties who can’t help but weave a past infidelity into every aspect of their divorce litigation will be disappointed to realize that they won’t receive vindication through the California family courts. Unless, of course, that infidelity is financial in nature. There are serious consequences for a spouse who tries to conceal, liquidate, encumber, or otherwise jeopardize community assets without consent of the other spouse. Fiduciary duties between spouses are taken seriously by the courts. The difficult part is demonstrating proof. And if one spouse is clever and financially savvy, untangling the knot may require extensive discovery, and more often than not, the hiring of a forensic expert. Clients and attorneys should have candid discussions about what resources are available to prove the fiduciary breach and weigh it against the benefit received if successful at trial. Read more of our thoughts on how infidelity impacts our work with clients.



“In any contested dissolution, trust is a huge hurdle to a reasonable resolution. When children are involved, trust between the parents can be the biggest hurdle to coming up with an agreement for a parenting plan. This becomes even more complicated when there has been infidelity in the relationship.  I have seen many cases where two otherwise capable, caring parents spent inordinate amounts of money litigating custody because one parent was convinced that the other parent’s infidelity was proof of poor judgment that should limit their parenting time. In cases where infidelity was an issue, having a good support system and professional assistance with co-parenting sooner rather than later can make a huge difference.”



Melissa J. Harman, Family Law Attorney“One of the biggest hurdles I face as the attorney when infidelity is involved in the case is keeping the focus on issues that are relevant to the family law matter. Whenever emotions, rather than the law, are the driving force of the case all of the parties involved pay—both financially and emotionally. While it is important for spouses to work through the emotions in a divorce, your attorney is not qualified to act as a therapist in most cases and it is not cost-effective to use them as a therapist. However, it is important to disclose these issues to your attorney so they can understand the emotional undertone of the case. There are also some cases where a separate claim may arise based on your spouse’s infidelity, such as if you become infected with a sexually transmitted disease or infection. You should always feel comfortable sharing with your family law attorney so that they can help you through this difficult process… or point you in the direction of a personal injury attorney.”



image of Kristen L. Sellers of team attorney page“Although California is a no-fault state, infidelity can have a negative impact on the divorce proceedings. An otherwise amicable divorce may become highly contentious if the cheating spouse allows the “other woman/ other man” to actively participate in the proceedings, such as sitting in on meetings with the attorney and attending court hearings. Although it can be helpful to have the support of a new significant other through the divorce, emotions are running high and having that person front and center only exacerbates an already highly emotional process.”



image of Michelle L. Stowell on attorney team page“Since California is a no fault state, infidelity on the part of a spouse is usually not an important factor in deciding either the division of assets or custody. One exception to that rule is when community funds (money acquired during marriage) are used to either finance the affair (think trips and gifts) or to pay the expenses of the girlfriend or boyfriend. In my career, I have had only one case were I was able to trace money that Cheater Husband used to pay the living costs of his Mistress. In that case, Husband used community property to pay for his mistress’s apartment, furniture and car. The guy was careless to pay these expenses using his checking account – so it was easy to follow the paper trail by looking at the bank statements. Since Husband did not cover his tracks very well, he was ordered to reimburse the community estate (Wife is one-half of the community, so she received one-half of what Cheater Husband paid out for his Mistress’s expenses). In most cases where infidelity has been an issue (and there are many of them), the costs associated with proving community funds were used on an extra-marital affair outweigh the benefits – i.e. it costs more to prove than the proof is worth. The above exception proves the rule.



Neil M.E. Forester Family Law Attorney“The biggest impact infidelity has on the legal landscape in my case experience is on the emotional and psychological aspects. Though the courts will not generally consider “cheating” a relevant circumstance in deciding property or support issues, the damage that infidelity does to the trust level between divorcing spouses cannot be discounted. Without some level of trust, every decision and every strategic move will be more difficult and thus more time consuming and expensive.”



Keeley L. Nickelson, Family Law Attorney“I handled a case once where, despite being agreeable to the division of assets and debts, Spouse A would not allow the case to come to judgment without first proving they knew Spouse B had been cheating on them. It required disclosure of substantially more financial documents than would have typically been necessary in what was a relatively amicable case. Spouse A was able to prove the infidelity based on various expenditures found in the account statements. Spouse A ultimately made the infidelity public, affecting Spouse B’s relationship with their child as well as their reputation in the community. So, while the fact that Spouse B’s infidelity did not have any effect on the overall settlement, it did cause ripples into other aspects of the family’s lives.”





ABOUT THE FIRM: FORESTER PURCELL STOWELL PC is a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. Its shareholders are Certified Family Law Specialists, recognized by the State Bar of California’s Board of Legal Specialization. The firm regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, custody disputes, premarital agreements, and related actions. Attorneys can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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