Kathleen J. Smith, Attorney at Law

Can you use your spouse's affair to your advantage in divorce?

You may have never expected that your marriage would end in divorce. Then again, you may have considered this outcome a real possibility due to the disagreements you and your spouse had and other difficulties throughout the relationship. Still, you may have been shocked when you learned that your spouse had been unfaithful.

Infidelity commonly results in marriages coming to an end. While you and your spouse may not have had the happiest of relationships, this situation still hurts. Now, you find yourself having to determine how you will handle the divorce proceedings that you feel best suit the situation.

No-fault divorce

Though your spouse cheated on you, it will likely not play much of a role in the eyes of the court when it comes to settlement outcomes. The reason for this lack of impact is that California — and all other states — have no-fault divorce proceedings, which means that a specific reason does not have to exist in order for the divorce to occur — other than irreconcilable differences. You may think that the pain your spouse's infidelity brought you should garner some incentive, but it likely will not in court.

Community property

Before you resign yourself to receiving a less-than-desirable outcome from your divorce case, you may want to determine whether your spouse spent an excessive amount of money on the third party. Community property laws mean that your marital property will be split 50-50, but if your spouse paid for vacations, places to live or expensive gifts, this could impact your marital property. So, you may have the ability to argue that you are entitled to at least a portion of the money your spouse spent on the third party.

Feelings of guilt

You and your spouse could also try to negotiate your settlement outside of the courtroom. If your husband or wife feels guilty over the affair, you may be able to use that guilt in order to get more of what you want out of the situation. Even if guilt is not present, your spouse may still feel willing to give into your demands if he or she wants the case to move forward quickly.

While you should not necessarily use divorce as a vehicle for seeking revenge against your cheating spouse, you could still work toward the outcomes that you believe will best help your situation. Consulting with an attorney could allow you to better understand no-fault divorce, community property division and other aspects of your specific case.

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