California is famously known as a no-fault state in divorce courts. But is this really true?
The idea of no-fault divorce became prominent over 50 years ago, with California leading the country in making this reform, and this idea continues on to today. The foremost example of this is found in the phrase “irreconcilable differences,” which is all you have to claim in order to get a court to return you to the status of single, an unmarried person. There is no reason to think this will ever change.
But when it comes to specific issues in a divorce, fault will become an issue.
For example, does having an extramarital affair count against you in divorce court? Well, by itself, no—it is unfortunately so common nowadays that you’d be hard pressed to find a judge who cares about this. But—and of course most things in legal contexts have exceptions—there are exceptions. An affair may cause damage to children if mishandled—and it is so easy to mishandle an affair, which could affect a court’s decisions about parenting. Spending excessive amounts of money on an affair can damage the community estate, resulting in restorative financial orders during a divorce. And—less obviously but more commonly—anything that drives up the emotional temperature of a divorce is going to make the lawyers richer and the family poorer.
Having an affair is the most talked-about fault in some marriages, but really any kind of betrayal is likely to have consequences.
If one spouse dissipates marital resources, that spouse may be held to account. If a spouse invests family funds in a blue chip stock, no one is going to succeed in demanding sanctions for not investing in bitcoin. But if one spouse invests family funds in casino games, in amounts exceeding prudent recreational gaming, that spouse is probably going to be held responsible for losses.
The list goes on. You can’t assault your spouse. You can’t hide cash in the Caymans. However, fault will not count against you if you merely make the kinds of mistakes we frail human beings all so often make. But don’t take “no-fault” as a license to act outside the realm of common sense. Treat everyone with respect, and you’ll be fine.