Cheating Spouses Leaving Digital Trails

Spouses can get divorced for an infinite number of reasons. A common reason often cited by divorcing couples is adultery or, more generally, infidelity. In a time of smartphones, social media, and many online dating apps, infidelity can be carried out in more ways than just simply meeting in secret.

Now, many people conduct their romantic communications via text messages, e-mail, and direct messages across various social media platforms. As our technology progresses, it is more common for infidelity to span beyond the physical realm as spouses engage in “emotional” affairs across digital platforms with people they have never even met in person. 

Because of the expansive way people can communicate, many spouses become more suspicious that their partners are cheating, especially if it seems that a partner is spending more time on their phone than usual. 

Cheating Spouses Often Leave a Digital Record

Due to rapidly advancing technology, cheating spouses almost always leave behind some form of “digital breadcrumbs” relating to their affair despite their best effort to hide all evidence. This can range from a forgotten e-mail thread, text messages that were not deleted from the Cloud, photos, fake Instagram accounts that are used to allow the cheating spouse to communicate with other men or women, or bank statements reflecting withdrawals that causes the other spouse to raise an eyebrow. 

As mentioned above, most spouses become suspicious of their partners after witnessing their partners spend an excessive amount of time on their phones, become hypervigilant in ensuring that their phone is with them at all times, or suddenly changing passwords on joint e-mail or bank accounts. This type of behavior can make a spouse so suspicious that he/she feels as if the only option to find out the truth is to look through their partner’s phone. 

If you find yourself suspicious of your spouse, there are a few things you may want to consider before trying to access your spouse’s phone without his/her permission. 

What are the Consequences of Accessing a Spouse’s Phone Without Permission?

Although you may feel compelled to search through your spouse’s phone to get answers, there can be severe repercussions for doing so without your spouse’s consent. 

California Penal Code section 502(c), makes it a crime to access a computer or computer network knowingly without permission. Under this statute, the term “computer network” includes cellphones.

Therefore, it is a crime to access your spouse’s cell phone without permission. The punishment for accessing your spouse’s cell phone without consent can range depending on if the offense is treated as an infraction, misdemeanor, or felony. 

It may be enticing to search through your spouse’s phone, but the consequences could cause you more trouble than it may be worth, especially when considering divorce and factoring in that California is a “No Fault” state. 

Can Infidelity Impact Spousal Support During Divorce in California?

Most often, spouses think that if they can prove their partner was unfaithful, that they will be entitled to more support in the divorce. Or, on the other hand, that they will not be forced to pay support to a cheating spouse.

In fact, according to California Family Code sections 2310(a) and 2310(b), a dissolution of marriage can be obtained only on the grounds of irreconcilable differences or permanent legal incapacity to make decisions. Most spouses cite irreconcilable differences when filing for divorce in California. 

The term “irreconcilable differences” is purposefully broad so that the question of fault or misconduct by the other party as to why the marriage is ending is irrelevant. This is why California is commonly referred to as a “no fault” divorce state. 

Since fault will not be determined when divorcing in California, a person cannot request a lower or higher spousal support order based solely on the fact that their partner was unfaithful. However, it is important to understand how courts determine a spousal support award if you find yourself going through the divorce process. 

Spousal support can be awarded on a temporary or permanent basis. Temporary spousal support is awarded during the pendency of the divorce litigation and lasts until a final dissolution judgment is entered. According to California Family Code section 3600, “The court may order either spouse to pay any amount that is necessary for the support of the other spouse.”

Essentially, temporary spousal support is designed to preserve the “status quo” that was established during the marriage. In preserving the “status quo”, the court will examine the requesting spouse’s need for support and the other spouse’s ability to pay. 

Permanent spousal support is the monthly amount awarded to a spouse once a Judgment for Dissolution has been entered. Permanent spousal support can last for a few years or indefinitely, depending on the length of the marriage. California Family Code section 4336 states that the court can retain jurisdiction of spousal support indefinitely for parties who were in a marriage of ten years or more, also known as a marriage of “long-duration”.

When determining the amount of permanent spousal support to award, courts will consider the comprehensive list of factors set forth in California Family Code section 4320. Some of these factors include, but are not limited to the following: the marketable skills of the party requesting support, the extent to which the requesting party’s future earning capacity was impaired due to periods of unemployment to focus on domestic duties, the needs of each party based on the standard of living established during the marriage, the length of the marriage, the ability of the supporting party to pay support, the assets and debts of the parties, and the age and health of the parties. 

As mentioned previously, since California is a “no fault” state, courts will not award the injured spouse more support solely because a spouse cheated. Further, the law sets forth specific factors for courts to consider when determining spousal support, none of which include whether or not a spouse was unfaithful. Therefore, a court will not consider infidelity when making a spousal support award. 

Can Infidelity Affect Child Custody in a Divorce?

Once more, since California is a “no fault” state, an unfaithful spouse will not be prevented from being awarded custody or visitation of the children. However, when awarding child custody and visitation, courts focus on “the best interests” of the children.

In determining what is in the “best interests” of the children, a court will focus on, among other factors, the children’s health, safety, and welfare. If an unfaithful spouse moves in with his/her new romantic flame, and the environment in that home negatively affects the children’s health, safety, and welfare, then an unfaithful spouse’s ability to have custody or visitation of his/her children could be negatively affected. 

For example, if it is discovered that the unfaithful spouse is leaving young children home unattended or neglected as a result of him/her spending more time with his new romantic interest, then a court would be concerned that the children’s needs are not being properly tended to and the children are not being adequately supervised; neither of which is in the children’s best interest. This could result in the unfaithful spouse having less parenting time with his/her children altogether. 

Another example where an affair could affect an unfaithful spouse’s custody or visitation with his/her children is where the unfaithful spouse’s new flame is abusive to the unfaithful spouse or to the children. Exposing children to an abusive situation, regardless of who is being abused, is a threat to their health, safety, and welfare and not in their best interest. Thus, an unfaithful spouse’s parenting time could be reduced so long as he/she remains in a relationship where abuse remains present. 

Overall, an unfaithful spouse will not lose custody merely because he/she engaged in an affair. However, an unfaithful spouse’s behavior as a result of the affair, or the nature of the affair relationship, could directly affect the children’s best interest, which could ultimately effect how a court determines which spouse cares for the children regularly.  

Can Infidelity Affect Child Support in a Divorce?

Pursuant to California Family Code section 4055, child support is based on a statewide uniform guideline calculation that uses a mathematical formula to determine what a spouse’s monthly guideline child support obligation should be. This formula uses the following variables when calculating child support: (1) the higher earning spouse’s net monthly disposable income, (2) the amount of both spouse’s income to be allocated for child support, (3) the approximate percentage of time that the higher earning spouse has with the children compared to the other spouse, and (4) the total net monthly income of both spouses. 

Since there is a specific uniform formula that is used to calculate child support regardless of where spouses live in the state, a court cannot consider a spouse’s infidelity when calculating child support. 

Although an unfaithful spouse cannot be ordered to pay more child support solely based on his/her infidelity, his/her child support obligation could be impacted depending on if he/she receives less parenting time with the children as referenced above. 

Can Infidelity Lead to a Breach of Fiduciary Duty Claim?

Although infidelity will not affect spousal support, a spouse may be able to bring a breach of fiduciary duty claim against a spouse as a result of the spouse’s infidelity. 

Pursuant to California Family Code section 721(b), in transactions between themselves, spouses are subject to the same rules governing fiduciary relationships that control the actions of people occupying confidential relations with each other. Essentially, spouses owe the same type of fiduciary duties to each other that business partners owe to one another. The confidential “business-like” relationship requires spouses to act with the utmost in good faith and fair dealing and prohibits spouses from taking unfair advantage of one another. 

One way a spouse can breach their fiduciary duty owed to the other spouse is by giving away or selling community assets without the other spouse’s permission. An unfaithful spouse can give away community assets without the other spouse’s permission by purchasing expensive gifts for his/her other lover without the consent of his/her spouse.

California Family Code section 1100(b) specifically states that a spouse cannot make a gift of community personal property or dispose of community personal property less than fair and reasonable value, without the written consent of the other spouse.

This section of the Family Code specifically does not apply to gifts made by one spouse to the other spouse. However, it certainly applies if an unfaithful spouse were to use community funds to purchase an expensive or elaborate gift for his/her paramour. 

For example, if an unfaithful spouse used community funds to purchase an expensive car or fine jewelry for a romantic interest, most likely without the other spouse’s consent, then the unfaithful spouse breached his/her fiduciary duty owed to the other spouse. 

As mentioned above, unfaithful spouses often leave “digital breadcrumbs”, in the form of bank transactions, that lead the other spouse to uncover that an affair is going on. Bank transactions for large ticket items a spouse has never seen or continuous withdrawals that can be identified as rent for another residence, with a little more digital digging, are often tell-tale signs that a spouse is being unfaithful. 

If a spouse finds out that their spouse was unfaithful and can prove that the cheating spouse breached their fiduciary duty by disposing of community funds without his/her consent, there are remedies available. 

Pursuant to California Family Code section 1101(g), remedies for a breach of fiduciary duty by one spouse shall include an award to the other spouse of 50%, or an amount equal to 50%, of any asset undisclosed or transferred in breach of the fiduciary duty. This statute also provides that, in addition to the above relief, the other spouse can also request the breaching spouse contribute to his/her attorney fees and costs related to bringing for the breach of fiduciary duty claim. 

Even though California is a “no fault” state, an unfaithful spouse can be held accountable for their distasteful actions, specifically if it can be proven that the unfaithful spouse breached his/her fiduciary duty by spending community funds on his/her affair.

Are You Thinking of Leaving a Cheating Spouse? Let the Experts Help You

Finding out that your spouse is unfaithful is never a good feeling and can lead spouses to feel lost and unsure of what to do next. Our supportive and knowledgeable attorneys at Cage & Miles are here to help you by advising you on the next steps, and throughout, the dissolution process. Become empowered and get in touch with one of our empathetic and seasoned family law attorneys by scheduling a free 30-minute consultation today.