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Spousal Support and the Cheating Spouse!

Posted by Charles J. Morris, Jr. | Apr 17, 2024 | 0 Comments

Why doesn't anyone care that my spouse cheated on me?

California is a “no fault” divorce state. For the past several decades, California divorce courts have not been required, or permitted, to assess or apportion blame for bad acts one of the parties may have committed except as to specific issues under limited circumstances pertaining primarily to child custody, spousal support and domestic violence.

Community Property Equal Division

Family Code §2335 provides: “Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage of legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible.” Family Code §2550 mandates an equal division of community property unless the parties agree otherwise in writing.

The illegal or immoral conduct of a party may be raised in a proceeding for orders pertaining to child custody. Domestic violence must be taken into consideration by evaluators in a child custody evaluation and the court in proceedings dealing with child custody. There are specific provisions limiting the divorce court's discretion to make child custody orders when the child is a victim of the abuse.

Domestic Violence and Spousal Support

Applications for domestic violence restraining orders are another exception. Descriptions of the conduct of the party against whom the other party is seeking a domestic violence restraining order are the basis for the request for those orders. The information about bad acts must be presented to the court in these proceedings but may not be pertinent to the other issues in the case.

Fault in the form of bad behavior has been reintroduced into family law when that behavior involves domestic violence. When making or modifying an order for spousal support, documented evidence of a history of domestic violence is one of the factors set forth in Family Code §4320 that the court must consider. Moreover, there is a rebuttable presumption disfavoring an award of spousal support to a party who has been convicted of domestic violence under the provisions of Family Code §4325. Family Code §4324 provides that if a spouse has been convicted of attempted murder of the other spouse or of soliciting for the murder of the other spouse, the victim spouse, whether they are injured or not, cannot be ordered to pay spousal support or provide other benefits to the convicted party. Family Code §4324.5 addresses what happens if a spouse is convicted of a violent sexual felony against the other spouse. Under the provisions of this section the convicted spouse cannot be awarded spousal support from the other party, cannot be awarded attorney fees from the other spouse's separate property and the injured party is entitled to 100 percent of the community property interest in the injured spouse's retirement and pension benefits.

Spousal Support and Cohabitation

Given the social norms of today, adultery is not likely to be a significant consideration even in a child custody action and certainly it is not going to be relevant to support issues or the division of property. However, spouses sometimes become aware of the other's spouse's activities when reviewing credit card statements which may have some impact on property division. Family Code §4323 provides there is a rebuttable presumption of reduced need when a spouse is cohabiting with a nonmarital partner for purposes of establishing or modifying spousal support if the supported party is cohabitating with a nonmarital partner. The spouse that is paying spousal support may cohabitate without consequence. Family Code §4323(b) provides “The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.” This also applies to child support as to the new mate of both the obligor (the one that pays) and the oblige (the one that receives) as provided in Family Code §4057.5.


The philandering spouse may find out that bad behavior can be expensive even so. More than one has been strung up by their credit card statements. While Family Code §1100 provides that each spouse has the management and control over community personal property except for testamentary purposes just as they would over their own separate property, there is an exception that is sometimes important and may provide for some remedy for the wronged spouse. Subsection (b): “A spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse.” This prohibition does not include gifts between the spouses or gifts they mutually make, but certainly a gift to the new honey is going to qualify and, perhaps, satisfy the wronged party.


Contact a Divorce Lawyer in Glendora Today

If you are facing a spousal support issue, make certain your rights are protected by hiring our family law lawyer in Los Angeles County, Orange County, Riverside County, San Bernardino County, Californis. At Morris Law Firm, in Glendora, Los Angeles County, we know how to handle spousal support matters. Contact us today by using our online form or calling us directly at 626-914-2791 to schedule a Consultation.

About the Author

Charles J. Morris, Jr.

A Certified Family Law & Divorce Attorney For more than 25 years, Mr. Morris has represented the rights of others in cases ranging from family law to estate planning. As a certified family law specialist, he is uniquely qualified to help his clients navigate their circumstances and pursue soluti...


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