California has “no fault” divorce, which means it does not matter why a marriage breaks up or which spouse is responsible for the breakup.  Therefore all community property is divided equally and spousal support (alimony) is paid if the finances support such a request irrespective of one spouse’s bad act.  For example, if the husband is the breadwinner and he has an affair that ends the marriage, he will pay alimony to his wife.  Likewise, if the husband is the breadwinner and his wife has an affair that causes a breakup, he will still pay alimony to her.  This seems really unfair, but as a practitioner of family law, I must deliver the bad news of “no fault” divorce daily.  This is my job.  And while I have had many clients who have  committed such indiscretions, I believe I have never passed judgment.

The public affair

This past weekend I had the unfortunate experience of being in a front row seat to what I immediately identified as a torrid affair in the middle of one of the top restaurants in New York.  It was clear to me this was a torrid affair involving a married person due to the amount of alcohol the two people were consuming, the close proximity of their bodies in the middle of the bar as they waited for a dinner table, her wedding ring and his lack of a ring.  These impressions were confirmed by our unfortunate dinner seating directly next to them, where a full assault on our senses commenced as we could easily overhear this couple’s indiscrete and descriptive plans for after dinner, and the woman’s constant complaining about her husband.  My dinner was ruined.

Whose “fault” is it?

Obviously, I had no idea what led this woman to a very public affair…did her husband cheat on her?  Does her husband engage in acts of control, intimidation or violence toward her?  Does he ignore her and not treat her as a partner in the marriage? Who knows?

This woman’s affair made me think from the point of view of my clients.  My initial emotional reaction was that this woman should not be entitled to spousal support —the laws need to change to be fault based! Then, as I thought about this more, the other possible factors mentioned above came to me. Who knows what led her to this adulterous act? While no doubt this couple ruined my dinner, maybe the woman’s husband did something first to prompt her actions.  Maybe this woman and her husband have an agreement for an open relationship, who knows!

I believe it is all these unknowns and the inability to answer the old adage, “What came first, the chicken or the egg?,” which are the reasons the question of fault as it relates to why the marriage ended is not allowed in California…nor in any other state, including New York.

What would you do?

I was in New York – not my home town – when this occurred.  I think the larger and more difficult question is, had this same event occurred in Los Angeles and if I had personally known this married person having this affair, what would I have done?  What would you have done?  We know the law does not distinguish between who is “at fault” in a breakup, but we as human beings have the ability to make choices, or at least form opinions, when faced with such circumstances. It illustrates why family law problems can be so complicated, and so challenging to resolve.