Alimony Arguments: Cheating Doesn’t Pay

Everyone wants leverage in an acrimonious divorce, where both parties hunger for it. When the split between spouses involves infidelity, any part of the divorce proceeding can become grounds for a protracted proxy war between the parties.  The most common target is money, specifically spousal support (California’s alliterative name for alimony) payments.

It’s not just on television. It happens all too often in real life. Don’t believe me? Just ask Demi Moore. She reportedly wanted her ex-husband, Ashton Kucher, to pay her spousal support because she was allegedly angry about his reported infidelity. (And yes, that statement was indeed couched in a number of disclaimers.) She didn’t get it.

He’s got a good attorney.  He probably knows he can play without having to pay (spousal support).

[For more fascinating reading about this particular celebrity spousal support case, see:

Family law attorneys are routinely asked, “My spouse cheated on me.  What can I get in alimony? I want to really make them suffer.” Extracting financial vengeance for marital infidelity seems to be a sound strategy in the minds of many aggrieved parties. Movies and television are filled with these false examples. (Quick pointer – Don’t get your legal strategy from Hollywood. See Ms. Moore’s example above.)

It’s understandable. You want revenge. You want to make her suffer and going after her through the wallet is your opinion of the most effective method. Or you’re sick of playing the ‘Good Wife’, standing silently by your man (with all due apologies to Alicia Florrick, et al). If you’re a California resident, here’s the problem – the court doesn’t really care. Spousal support is awarded based on a variety of factors, none of which have anything to do with infidelity.

When determining a permanent order for spousal support, the court is interested in making sure that the party that is the non/low earner is supported for a period of time and is able to get back on their feet. The court looks at the following factors:

1.     Each party’s ability to pay, earnings or earning capacity

2.     Needs of the parties based on the standard of living during the marriage

3.     Health of the parties

4.     Obligations/assets (including separate property) of the parties

5.     Contributions of lower earning party to the higher earning party’s education/career

6.     Tax consequences

7.     Domestic violence

8.     Balance of hardships

9.     Any other factors

10. Duration issues

A careful reader (of which you are surely one) will note that there is no factor that takes into account infidelity. Because California is a ‘No Fault’ divorce state (meaning that you don’t have to accuse your spouse of any type of inappropriate behavior in order to file for divorce), the reason for the divorce is not stated anywhere in the divorce filings in the large majority of cases.   Your spouse’s infidelity largely has no place in the filing of your divorce or in the calculation of your support.

So if you feel hurt, rejected and most of all vengeful, please don’t expect to extract your revenge through spousal support payments. (Trying to do it through child support is an even worse idea.  Family law judges generally hate to see the children and child support being used for leverage and are not shy or quiet about expressing their displeasure.) It turns out the maxim you learned in elementary school that “cheating doesn’t pay” is right. It doesn’t pay you as the aggrieved party anything – except maybe another reason to tie up your loose ends and look forward to a new beginning.

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