John J. Gilligan, a family lawyer in Long Beach, answers:
There are two grounds for divorce in California: irreconcilable differences that have led to the irremediable breakdown of your marriage, and incurable insanity. California is a no-fault state, which means the court considers the reason behind the break-up irrelevant – unless it adversely affects the best interests of the children, such as domestic violence, breach of fiduciary duty, and other similar intentional acts. Therefore, if your wife had an affair which led to the breakup of your marriage, she would not be punished for her ill-advised actions. She would still receive 50% of the community property; it would not discredit or hamper her chances of obtaining custody of the children, and it wouldn’t affect her ability to obtain support if the economic circumstances permitted it.
However, there are some acts of wrongdoing that could affect the division of the property and/or the payment of support. For example, if a spouse took a large amount of community funds and spent it in ways that did not benefit the community (such as gambling, payments to entertain a girlfriend/boyfriend or risky investments without consent of the other spouse), it could be offset against any property the wrongdoer would receive in the divorce plus, possible interest, and attorney’s fees. This is found under Family Code §1101, §721 and certain provisions of the Corporations Code.
Another example of “fault” in a marriage is where one spouse inflicts injury upon the other, causing the court to render a finding of domestic violence. There is a presumption, which can be rebutted through the appropriate evidence, that the victim in a domestic violence incident should not be required to pay spousal support to the spouse who committed domestic violence.
Therefore, although California is technically a no-fault state, there are certain acts that could affect the ability of the at-fault spouse to obtain 50% of the community property or the amount of spousal support that he or she would otherwise receive.
There is a fine-line between the no-fault aspect of the system as compared to those few exceptions where fault will be considered. Only an experienced family law attorney can properly advise you on such issues.
John Gilligan is a founding partner at the family law firm offices of Brandmeyer Gilligan Dockstader & Davidson, LLP in Long Beach, CA. John has over 30 years of experience handling family law, probate litigation and estate planning matters. He can be reached directly at 562-431-2000.
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