California Adultery Laws: Key Facts You Need to Know

What Constitutes Adultery in California?

California law does not define "adultery." While there is a general understanding of the behavior that the word means, no precise or specific definition exists.
The State of California views adultery as a "social" or "religious" concept. From a legal perspective, it is known as "extramarital sexual intercourse."
From a legal perspective, adultery has some consequences. While it can be a factor the court considers in a divorce, adultery does not affect the distribution of community property assets or debts or the spousal support award amount every month. It may, however, affect child custody and visitation awards when appropriate. For example, if a parent has engaged in adultery that is particularly harmful to a child’s psychological well-being, it might be taken into account in resolving custody and visitation issues. This is rare, however, and in most cases, adultery has little to no effect on an outcome when this is a contested issue.
One exception to this in California law is under Family Code § 721 which defines fiduciary duties of the marriage . Both spouses in a marriage owe each other a fiduciary duty honestly and openly to account to the other spouse for all assets and liabilities. When one spouse spends marital funds on an affair, the money spent is a breach of that fiduciary duty. Each breach results in a penalty to that spouse, and gives rise to the right by the non-breaching spouse to a one-half ownership interest in the value of what was given away to the third party.
If the offending spouse simply gives away community property assets or uses community property to make gifts to the third party, the non-breaching spouse has the right in the divorce to not only have the gift or transfer returned to the community, but can also receive reimbursement for the equal value of what the offending spouse gave away or paid for. Even if that money was used for a hotel room with a prostitute rather than on a fancy dinner or taking an affair partner on a fancy vacation, the offending spouse is still required to pay back to the community.

Adultery and Divorce: The Legal Consequences of Extramarital Affairs

Adultery, or infidelity as it’s also known, is one of the most commonly vilified aspects of divorce. In many ways, it’s a scapegoat used to explain away the relationship’s demise, as well as a way to reassign blame to a spouse who’s already facing divorce head-on. The reality is that adultery doesn’t undo a marriage, and while it can be exceptionally uncomfortable to deal with, it isn’t the death knell for the dissolution of a relationship.
As far as California divorce courts are concerned, adultery is not a crime. Beyond cheating on a spouse, there is no legal implication that adultery holds, and it does not have any bearing on the outcome of divorce proceedings. California is a no-fault divorce state, meaning the courts don’t consider why the couple is divorcing, nor do they ask for proof of this reason. In California, the only legal grounds for divorce is irreconcilable differences — "a complete and irremediable breakdown of the marriage." Adultery is not a legal reason to get a divorce.
Not only is adultery not considered a legal reason to get a divorce, but it doesn’t have any bearing on the result, either. While cheating spouses may fear that their actions will lead to an unfavorable outcome, the courts don’t take adultery into account when handing down a divorce decree. At least in California, the courts take a much more neutral, business-like approach to decisions like alimony, child custody, and property division.
In fact, even though adultery technically nullifies the legal implications of divorce, it can still severely impact the wellbeing of a family. If a spouse’s adultery leads to separation, it’s during this split that financial concerns commonly arise. For example, before a divorce is initiated, a spouse may spend lavishly on the mistress or start hiding assets in order to deprive the other spouse of their fair share. In these situations, adultery is not the cause of the divorce, but can impact its outcome.
It is important to emphasize that adultery and irreconcilable differences are not mutually exclusive. For example, an adulterous wife may still have grounds for divorce through irreconcilable differences. But, in the context of a split, adultery will not come into play.

Is Adultery Against the Law in California?

While adultery was considered a criminal offense in certain states as recently as the 1970s, adultery has not been a prosecutable offense in California since 1939. The criminalization of adultery was deemed to violate the establishment clause of the First Amendment. However, even though criminally prosecuting adultery is no longer an issue, adultery may still be relevant in divorce and family law cases in California because it could affect the split of assets and spousal support for example. Of course, proof must be obtained that spousal support or marital assets have been used on the paramour or in the case of support, that the paramour is living with the person requesting support prior to the trial date. There is little risk of jail, fines, or other legal consequences for those involved in an adulterous relationship under California law.

California Family Law and the Impact of Adultery

Adultery, or engaging in sexual relations with someone other than your spouse, is not illegal in California, but it does have implications in California family law proceedings. For example, adultery can affect a request for alimony, however, only in rare circumstances.
In California, prenuptial agreements (also referred to as premarital agreements) may include an adultery clause stating that committing adultery will result in the forfeiture of spousal support. These clauses are lumped into one of the following categories: (1) Waiver of spousal support; (2) Waiver of increased spousal support if a spouse has sex with someone other than his/her spouse; and (3) Base level spousal support forfeited if there is cheating. Where the offending spouse will receive nothing if he/she cheats on the other spouse, forfeiture is a contract provision, not a punitive measure. Courts in California are unwilling to uphold alimony clauses in California that act as punitive measures.
Clause one is generally enforceable. Clause two is unenforceable because the law cannot subordinate child support to spousal support; in other words, the waiver, if it waives support at all , applies only to spousal support to the exclusion of child support. Clause three is also unenforceable as it is a claim for alimony based on adultery alone, to wit: cheating means no support.
On the Family Code 990 restrictions on spousal support, the law states that a court cannot distinguish between the specifics of adultery; courts cannot evaluate when the adultery began, whether the cheating was ongoing, or any of the other details that an adultery clause would address.
In California, adultery in and of itself is not grounds for divorce, but it is part of the overall context for an uncontested divorce. More than arguably any other state, California embraces the "no fault" divorce, and parties filing for divorce in California do so based on irreconcilable differences. Adultery could, however, prompt a request for a spousal support order or increase an existing spousal support order, where the court believes that a spouse benefited from the misconduct, or that the cheating demonstrates a disregard for a spouse in a way that separately justifies spousal support. However, this is the exception and not the rule, and a California spousal support attorney can help clarify how adultery fits into a request for alimony within the context of a California divorce.

A Historical Overview of Adultery Laws in California

In the historical context, California’s adultery laws have evolved to reflect the state’s changing cultural attitudes and legal reforms. Historically, adultery was treated as a crime in many jurisdictions, including California, where it was once considered a felony. The stiff penalties for adultery were an attempt to protect the institution of marriage and dissuade infidelity among spouses.
During the mid-20th century, many states, including California, began to reevaluate and reform their legal approaches to marital offenses, reflecting a growing recognition of individual rights and the need for more equitable legal proceedings. By the late 1970s and early 1980s, California repealed its adultery statute and, in 1969, also enacted a "no-fault" divorce law that eliminated the need for either spouse to prove wrongdoing in order to obtain a dissolution of marriage. This shift aligned California’s divorce laws more closely with national trends that prioritized individual autonomy and the psychological well-being of families. The trend towards no-fault divorce legislation reflected a societal understanding that marriages may fail for a multitude of reasons, and assigning fault – whether through adultery or otherwise – was not always beneficial to all parties involved.
With divorce and marital dissolution becoming more commonplace, the legal system also had to address the implications of adultery for issues like alimony, child custody, and community property division. As a result, California’s family law courts now allow these issues to be adjudicated without the necessity of demonstrating fault, including adultery, which is now a strictly private matter between the spouses. This lack of consideration of marital fault in divorce proceedings aligns with the greater cultural shift towards more humane treatment of the family unit during its dissolution, while still allowing for evidence of misconduct to be factored into proceedings around co-parenting, alimony, and others.

An Overview of Adultery Laws throughout the United States

In the United States, adultery laws vary significantly from state to state. California is one of the states that has scrapped most of its old adultery laws. However, as a close, California’s neighbor, Arizona has much tougher consequences for adultery, which could result in up to six months in jail and/or a fine. Even if there is no proof that your spouse committed adultery, the law will use circumstantial evidence to suggest that there was adultery.
Hawaii similarly no longer criminalizes extramarital affairs. However, if an affair caused a third party to commit acts of alienation or intentional infliction of emotional distress towards your relationship, you may be able to sue your spouse for "alienation of affection" or your spouse’s lover for "criminal conversation . "
Some states, like Michigan and Virginia, still have laws in place that criminalize adultery. Both states have punishments of up to a year in jail. The difference is that they don’t prosecute adulterers, since they do not have the resources for such a large caseload.
And the worst states for adultery…?
Mississippi and South Carolina are the two worst states for adultery. Both have a maximum penalty of 5 years in prison, and neither state makes an effort to distinguish between a confession and circumstantial evidence.