California is a “no-fault” divorce state, meaning the grounds by which one may obtain a divorce are limited to irreconcilable differences and incurable insanity((Note: there are other grounds to obtain a divorce, the other grounds refer to marriages that are void or voidable. This blog post does not address those grounds.)). With regard to irreconcilable differences, this means that a spouse’s affair, or other bad behavior, will not have any bearing on the divorce because a spouse only needs to state that the couple cannot get along — that is, the couple has irreconcilable differences.

However, there are some reasons why a spouse’s affair may actually matter:

• Gifts to a Mistress or Lover: Per California Family Code section 1100(b), a “spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse.” This means that a spouse cannot shower gifts on their lover or any third party without the consent of their spouse.  Without consent, the non-gifting spouse may have a reimbursement claim against their spouse, or even against the lover or other third party.

In April, 2015, a trial court judge in Los Angeles ordered former NBA team owner Donald Sterling’s ex-mistress, V. Stiviano, to return more than $2.6 million she received from Mr. Sterling in cash, home payments and luxury cars, after the court found that Mr. Sterling had not received Mrs. Sterling’s written permission before showering his mistress with these lavish gifts.

Though Ms. Stiviano appealed the trial court’s decision, in July, 2017, the Court of Appeal upheld the trial court’s decision that ordered her to relinquish the $2.6 million in gifts she received from Mr. Sterling without Mrs. Sterling’s consent.

• Transmission of a Sexually Transmitted Disease: A spouse may have a claim against their ex-spouse in civil or criminal court if the spouse who had the affair transmitted a sexual disease to their spouse as a result of the affair. California has various laws that address inflicting a sexually transmitted disease on another, exposing another to the disease or even creating danger of exposure or transmission.

While many people—both clients and attorneys–realize that an affair will likely have no bearing on the divorce, it may be an important factor to disclose. Specific discovery may be needed to determine if community funds were expended on gifts for a third party. Or, the client may need a referral to a criminal or civil attorney to determine their rights and remedies in the event the spouse transmitted or exposed them to a sexually transmitted disease. Being totally candid with your attorney, though uncomfortable, is important, because, as this post demonstrates, that affair may actually matter.