With the traditional concept of marriage steadily fading, it’s not surprising that infidelity is one of the most common problems a married couple will face. Although statistics vary on the subject, it is commonly reported that approximately 60% of men and 40% of women will participate in an extramarital relationship at some point during their married life. To make matters worse (as if this isn’t bad enough), the majority of “lovers” knew their partner was married, but still began and/or continued their adulterous relationship.

Considering this, it’s not surprising that infidelity is one of the top reasons many marriages end in divorce.  But other than the divorce itself, what other recourse is available to the spouse that was cheated on?

Well, if you live in California, nothing; California is a “no fault divorce” state.  As discussed in “What If Divorce Was Impossible?”, This means that the spouse who wants the divorce is not required to prove that the other spouse did something wrong.  In fact, with few exceptions, the courts generally don’t care why you’re getting a divorce; this is why the only two “reasons” for divorce that are documented in divorce pleadings are:

  1. Irreconcilable Differences (the spouses couldn’t get along), or
  2. Incurable Insanity- one spouse is “insane” (While many people may believe the other spouse is “crazy”, to use this reason, claims of insanity must be substantiated by a medical doctor).

Despite the fact that infidelity is probably one of the most damaging things that can happen to a marriage, it does not matter if one spouse had an affair in a no fault divorce. California law does not punish the party who has an affair with less property or by making them pay more support because of an affair.

Because of the sanctity a marriage is supposed to entail, it’s arguable that this is an unfair process. Especially in cases where one is completely devoted to their marriage for years, only to later find out that their spouse was in fact living a double-life by being seriously involved with another person, particularly when the “other woman or man” knew of the marriage and purposefully ignored its existence.  For this reason some states enacted “home-wrecker” statutes, also known as “Alienation of Affection” laws.

An alienation of affection lawsuit allows a deserted spouse (one that has been cheated on) to sue the “home-wrecker” if their affair causes the marital relationship to fail. To win on this claim, the spouse must prove that:

  • Love existed between the married spouses prior to the onset of the extramarital relationship;
  • The marital love was alienated and destroyed as a result of the extramarital relationship; and
  • The “home-wrecker’s” conduct was a malicious interference with the marital relationship.

    Note: The deserted spouse does not need not prove that the “home-wrecker” set out to destroy the marriage; showing that he or she engaged in conduct that they knew or should have known would effect the relationship in a negative manner.

    The “home-wrecker” may not be guilty if he/she can show they:

    • They didn’t know the spouse was married;
    • The spouse was so unhappy that love didn’t exist between the spouses; or
    • They were not the aggressor in the extramarital affair

    But wait………you don’t have to be an intimate partner of the spouse to be considered a “home-wrecker.”

    Because marriage is supposed to be sacred and consist of two people, you too could be liable as a “home-wrecker:”  Have you ever given a friend, family member, or other person advice regarding their relationship and influenced them to “leave their spouse.”? If so, as a family member, therapist, counselor, or even a clergy member who has advised a spouse to seek a divorce, you may also be named as a defendant in such suits in one of the eight states that still allow for them.