Is California a No-Fault Divorce State? What Infidelity Still Costs

Yes, California is a no-fault divorce state, and it has been since the Family Law Act of 1969. “No fault” means neither spouse has to prove wrongdoing to end the marriage. Conduct can still cost money. For high-net-worth spouses in Los Angeles County, whether the case is heard at the Stanley Mosk Courthouse downtown, the Santa Monica Courthouse, or Van Nuys, an affair can still change the numbers when community funds paid for it. Borna Houman Law handles these cases from our office at 2530 Wilshire Blvd in Santa Monica.

Key Takeaway: California is a no-fault divorce state. A spouse may end the marriage on irreconcilable differences without proving misconduct, and evidence of an affair is generally inadmissible on the divorce itself. Infidelity can still cost money when community funds paid for it or when a court finds domestic violence.

What does no-fault divorce mean in California?

No-fault divorce means a California court will dissolve a marriage without either spouse proving the other did anything wrong. Under Family Code section 2310, the only grounds are irreconcilable differences that have caused the irremediable breakdown of the marriage, or a spouse’s permanent legal incapacity to make decisions.

In practice, almost every petition in Los Angeles County cites irreconcilable differences. Neither spouse has to describe what went wrong, and one spouse cannot block the divorce by refusing to agree. California was the first state to adopt this model; the Assembly Judiciary Committee’s history of divorce reform traces it to the Family Law Act signed in 1969.

The same court process applies to every case. The California Courts self-help guide to divorce describes the filing and service steps, including the six-month minimum waiting period that runs from service of the petition.

Does adultery affect divorce in California?

Adultery does not affect whether a California divorce is granted, and it generally cannot be used to win a larger share of community property. Family Code section 2335 makes evidence of specific acts of misconduct improper and inadmissible in a dissolution proceeding, except where child custody is at issue or another statute provides otherwise.

Clients who expect a judge to weigh the betrayal are often surprised by this. In our experience representing high-net-worth spouses, the useful question is where the money went, and whether any of it was community property spent outside the marriage.

Can a spouse recover community money spent on an affair?

Yes. A spouse who spent community funds on an affair can be ordered to reimburse the community, even though the affair itself is not a ground for anything.

Each spouse owes the other a fiduciary duty in managing community property under Family Code section 721. Family Code section 1100(b) bars a spouse from making a gift of community personal property without the other spouse’s written consent. And Family Code section 2602 lets the court award, as an additional award or offset against existing property, any sum a party deliberately misappropriated to the exclusion of the other spouse’s interest in the community estate.

For high-net-worth households, affair spending rarely looks like one large check. It shows up as travel booked on a business card, jewelry, a leased apartment, or payments routed through an entity. Proving it means tracing, which is why these cases often bring in a forensic accountant. We explain that process in our guide to forensic accounting in a California divorce.

Does cheating affect spousal support in California?

Cheating by itself does not change spousal support in California. The court sets long-term support under the factors in Family Code section 4320, which focus on the marital standard of living, earning capacity, the duration of the marriage, and each spouse’s needs and ability to pay.

Domestic violence is the exception. Section 4320 directs the court to consider documented evidence of domestic violence between the parties. Under Family Code section 4325, a criminal conviction for domestic violence against the other spouse within five years before the filing of the dissolution, or at any time after, creates a rebuttable presumption that no support should be awarded to the convicted spouse.

An affair is not domestic violence. A pattern of abuse is, and it can change support, fee awards, and custody whether or not infidelity was involved.

Is an infidelity clause in a prenup enforceable in California?

Generally no. In In re Marriage of Diosdado (2002) 97 Cal.App.4th 470, the Court of Appeal refused to enforce a marital agreement provision requiring a spouse to pay liquidated damages for infidelity, because penalizing fault conflicts with California’s no-fault policy.

That does not make a prenuptial agreement weaker for high-net-worth couples. It means the agreement should protect assets through property characterization, business ownership terms, and carefully drafted support provisions rather than through a lifestyle penalty. Support waivers face their own test, which we cover in our guide to spousal support waivers in a California prenup.

Can an affair affect child custody in California?

An affair alone does not decide custody. The court decides custody under the best interest standard in Family Code section 3011, which looks at the child’s health, safety, and welfare, any history of abuse, and the nature of each parent’s contact with the child.

Conduct becomes relevant when it touches the child. Introducing a new partner in a way that disrupts the child, missing parenting time, or exposing the child to conflict can all matter. Section 2335’s exclusion of misconduct evidence specifically carves out custody, so the same facts that are irrelevant to property may be relevant to a parenting plan. Domestic violence carries its own presumption, discussed in our guide to domestic violence and child custody in California.

Where does fault still matter in a California divorce?

Fault still matters in four places: misuse of community money, domestic violence, custody, and litigation conduct. The table summarizes each.

The last row comes up in contentious cases. Under Family Code section 271, a court may award attorney fees and costs as a sanction against a party whose conduct frustrates settlement or increases the cost of litigation. A spouse who turns an affair into a litigation campaign can pay for it there.

A worked example: tracing affair spending in a high-asset divorce

Consider a 14-year marriage in which one spouse is a private equity principal and the other left a law practice to raise the couple’s children. During the final two years, the principal spent community funds on a relationship outside the marriage: $68,000 in travel charged to a personal card, a $42,000 watch given as a gift, and $9,500 a month in rent on a West Hollywood apartment for 11 months, or $104,500.

The affair itself does not affect the grounds, and evidence of it is not a basis for a larger property share. The spending is different. The watch was a gift of community personal property made without written consent under section 1100(b). The travel and rent can be presented as deliberate misappropriation under section 2602. Together that is $214,500 of community money. If the court agrees, the spending is charged against the spending spouse’s share of the community estate, so the other spouse is credited for their interest in it.

Two practical points. First, the spending must have occurred before the date of separation for it to be a community expenditure, which is why the separation date often becomes a contested issue; see our guide to the date of separation in a California divorce. Second, if the spending spouse also concealed accounts, the remedies escalate, as we explain in our guide to financial infidelity penalties in California.

How is affair spending proven in a Los Angeles divorce?

Affair spending is proven through the mandatory financial disclosures and, when those fall short, through subpoenas and tracing. Each spouse must serve a preliminary declaration of disclosure under Family Code section 2104, listing assets, debts, and income, and the disclosure duty under Family Code section 2100 continues until judgment.

A spouse who leaves out an account, a card, or an entity that paid for the affair risks the remedies for nondisclosure on top of any misappropriation claim. Card statements, bank records, and business expense reports are usually where the pattern shows up. Where an entity paid personal expenses, the business books and the owner’s expense reimbursements need review as well.

Timing drives the analysis. Spending after the date of separation is generally the spending spouse’s separate obligation, so the question is what was spent with community funds before that date. In our experience, a clean reconstruction of the pre-separation statements, organized by category, is what moves these disputes toward settlement without a trial on the conduct itself.

Frequently asked questions about no-fault divorce

Is California a 50/50 divorce state?

California divides community property equally under Family Code section 2550 unless the spouses agree otherwise. Separate property stays with the spouse who owns it, and reimbursement or misappropriation claims can shift the final numbers.

Can I sue my spouse’s affair partner in California?

No. California abolished the old claims for alienation of affection and criminal conversation under Civil Code section 43.5. A spouse may still pursue the community’s money, but not the third party for the relationship itself.

Does the spouse who had the affair get less in a California divorce?

Not because of the affair. Property is divided equally, and support follows the section 4320 factors. The spouse may receive less if community funds were spent on the affair and the court orders reimbursement or an offset.

Can my spouse stop the divorce if they do not want it?

No. A spouse cannot block a California divorce by refusing to agree. Courts grant the dissolution once one spouse establishes irreconcilable differences and the procedural requirements are met.

What is the 10-year rule in a California divorce?

A marriage of 10 years or more is presumed to be of long duration under Family Code section 4336, and the court generally keeps jurisdiction over spousal support indefinitely. It does not mean support lasts forever.

Do I have to disclose the money I spent on an affair?

Yes. California’s disclosure rules require each spouse to disclose community assets, debts, and transactions fully and accurately. Hiding the spending exposes a spouse to nondisclosure remedies on top of reimbursement.

Should I hire a private investigator to prove an affair?

Usually not for the affair itself, since evidence of misconduct is generally inadmissible on property issues. A forensic accountant tracing community spending is usually the better investment.

Discreet counsel when the facts are personal

No-fault divorce removes blame from the grounds, but the money still gets traced. When an affair involved community funds, or when one spouse is threatening to make the divorce about conduct, the strategy should focus on tracing, characterization, and the statutes that actually move the numbers. Learn how we handle these matters as a high net worth divorce attorney in Los Angeles.

Written by Borna Houman, Esq., California State Bar No. 352339, Borna Houman Law, 2530 Wilshire Blvd, Santa Monica, CA.

Disclaimer: This article provides general information about California family law and is not legal advice. Reading it does not create an attorney-client relationship. Every divorce turns on its own facts, so consult a licensed California attorney about your situation.