In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.
Story of Infidelity and Divorce
An exceedingly common reason for divorce is spousal infidelity. Rarely is the case that infidelity is the root cause of marital problems. More often, infidelity seems to be a symptom of a marital conflict which has not been properly dealt with. Yet, infidelity and divorce are interconnected since infidelity, even if not the root cause of conflict, is at least a trigger which causes one spouse to initiate divorce. Considering the connection between infidelity and divorce, many people, during their consultation with a divorce lawyer ask whether and how the marital infidelity will impact their divorce. This blog uses the story of Infidelity and divorce of John and Hailey to illustrate the impact of infidelity on divorce, custody, child support, spousal support and division of assets and debts.
Infidelity and Divorce of John and Hailey
Hailey and John have been married for 15 years and have two children 10 and 9 years old. Right before the birth of their first child, John and Hailey purchased a house near Johns work in Orange County California. Hailey is a nurse by profession but has stayed home to raise the children since birth of the oldest one. John is a medical engineer who obtained his degree and job during marriage. John makes about $200,000 per year. Recently, Hailey finds out that John has been having an affair for the past 12 months. John has spent, using a credit card, $30,000 on fancy hotels and restaurants. John also took out a $40,000 loan. Hailey finds out John used the loan money to purchase a new car for his mistress. Most of the $30,000 was also used by John on his affair. Hailey is devastated. She scheduled a free consultation with a local divorce lawyer.
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Zoom Consultation with a local divorce lawyer
Hailey meets virtually with a local divorce lawyer for a free zoom consultation. The following is an excerpt of their discussion.
Q» Does my husband’s infidelity help my divorce case?
A» No. California is a no-fault divorce state. Your husband’s infidelity itself will not hurt or help you in obtaining custody, child support, spousal support or dividing the assets and debts. Thus, infidelity is not something that will be an issue in the courts.
Q» Even though I am a nurse, I have not worked for years. My husband was the wage earner. I stayed home to raise the children. How do I survive financially after divorce?
A» You have been married for 15 years. During most of your marriage you stayed home and raised the children. Marriages longer than 10 years are usually considered long-term. This means you may get long-term spousal support. Additionally, since you have been the primary caretaker of the children, we can ask the court for primary physical custody. This means the children will spend more time with you which will allow you to request and receive child custody under California law.
Q» My husbands name is the only name on the title of the house. What happens to the house?
A» If the house was purchased during marriage, it is presumed to belong to the community. This means that the house should be divided 50/50 unless there is some sort of postnuptial or prenuptial agreement or that your husband purchased the house with his separate property. We will make sure you get that which you are entitled to under the law.
Q» How should we divide debts after divorce
A» The marital money he spent on his affair should be reimbursed to you. This includes the loan and the credit card debts. However, the reimbursement is only to the extent that he used marital money and resources on his affair. The other debts accrued during marriage should be 50/50 unless we make a different agreement. If necessary, I can ask the court to award you a higher percentage of the house to make up for the money your husband spent on his affair.
Q» Who stays in the house during divorce?
A» Depends on many factors. If there is no domestic violence issue, we can ask that your husband leave the house since you are the primary caretaker of the children.
William Jr. is the name given to the baby boy. William Jr. becomes the subject of a child custody dispute that changes how custody laws are interpreted and applied in California and across the US.
An exceedingly common reason for divorce is spousal infidelity. Rarely is the case that infidelity is the root cause of marital problems.
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