My friend and fellow divorce attorney, Randi Susan Klein, just wrote this very insightful comment on her blog:
California is a “no fault” divorce state. That means that a California judge will not listen to arguments about the fact that your ex had extramarital affairs. In fact, you could be sanctioned and ordered to pay a fine for bringing that issue up in a California divorce proceeding. But does that mean that your spouses conduct is without consequences? Or that you are left holding the bag and without a remedy?
The answer is a resounding NO! Remember, California is a community property state. That means that judges are supposed to equally divide the community property between the spouses. However, like everything else, there are exceptions. One of these exceptions is that a court may order an unequal division of the community property if one of the spouses is found to have squandered or misused the community property. An example of that would be excessive gambling. Thus, if one spouse is found to have squandered community income at gambling casinos, a California judge could order something other than an equal division of the community property.
Another exception, and the one that is most on point here, is that neither spouse can make a gift of the community property without the consent of the other. Suppose your ex-spouse has multiple affairs. You can’t bring that up, or try to litigate that issue in court. However, you CAN point out that your ex misused community funds, or made a gift of the community property without your consent. For instance, if you can prove that your spouse paid hotel bills to meet with his or her lover, or bought the lover expensive gifts, or took the lover on expensive vacations without your knowledge or consent, you can present that as evidence of his or her misuse of the community property. It can also be evidence of making a gift of the community property without your consent. Accordingly, in that situation, you may be awarded more than 50% of the community assets.
An example which is familiar to us all, is the recent split of former Governor Arnold Schwarzenegger and his famous wife Maria Shriver. Maria, as well as the rest of us, recently learned that Arnold fathered a child with another women while he and Maria were married and living together. This “love child” was born around the same time that their youngest son Patrick was born. To add salt to the wounds, Arnold recently purchased a home for his former mistress and their love child in Bakersfield. The approximate cost of the home was $268,000.00. As discussed above, Maria may not litigate or bring up the issue of Arnold’s infidelity during the divorce proceedings. If she attempts to do that, she could be sanctioned or fined.
However, if Maria can prove that the Bakersfield home was purchased with community funds, such as the wages of either party, and that she did not have knowledge of this purchase, then she CAN use that as evidence that Arnold made a gift of their community property without her consent. This, in turn, could be grounds for an unequal division of the community property. Since their estate is estimated to be close to four (4) million dollars, an unequal division, favoring Maria, could be substantial. She may also be able to have the purchase of the home set aside.
The moral of the story is that there is more than one way to skin a cat, or, in this context, to get revenge. While a spouse’s infidelity may not be an issue in a California divorce, the way s/he spends his or her money is! Particularly if s/he squanders or makes a gift of community funds without the consent of the other spouse. Remember, every monetary transaction, whether through a bank account or credit card, always leaves an electronic trail.
Randi also included this link to an article about the impending divorce.