Infidelity can be extremely emotionally draining and stressful. If your spouse cheated on you, you may be wondering if, as the injured party, you have any legal recourse to receive compensation for your pain. Although somewhat complicated, there are a few circ*mstances in which you might be able to bring a civil case against a cheating spouse.
Alienation of Affection
When a third party interferes in a loving relationship between a husband and wife, some states allow what is known as an alienation of affection lawsuit. Usually, this type of claim is filed against the third party, rather than against the spouse, however. Filing an alienation of affection lawsuit requires proof that your marriage was a happy and loving one and that the third party intentionally destroyed your marriage. Unfortunately, only a handful of states still recognize this type of lawsuit, and California is not one of them.
Infliction of Emotional Distress
In California, victims who have suffered emotional anguish as the result of someone else’s actions can sometimes sue for either Negligent or Intentional Infliction of Emotional Distress (NIED or IIED lawsuits). Although adultery can certainly cause significant emotional distress, you should carefully consider what this type of lawsuit entails, including:
- Proving the existence of your emotional pain (e.g., through expert testimony of a counselor, etc.)
- Establishing how your pain is the direct result of others’ actions
- Documenting the severity of your distress and how the trauma has diminished your quality of life
- Demonstrating that your spouse’s behavior was outrageous or reckless and intended to cause you emotional distress (i.e., for IIED lawsuits only)
Unless you think you have a very strong case or stand to recoup a large amount of financial compensation from your spouse, filing an NIED or IIED lawsuit may cost more time and money than its worth.
How Infidelity Affects Divorce in California
Whether or not you choose to pursue a civil claim against your spouse for an extramarital affair, you might also be considering divorce. Since California is a no-fault divorce state, you would most likely cite irreconcilable differences, rather than adultery, as the reason for your divorce.
Although the California family court system does not usually take infidelity into account in divorce proceedings, there are certain cases where it can affect custody agreements or spousal support. Also, if your spouse spent marital assets on their affair (e.g., expensive gifts, luxury vacations, or hotel stays), the judge will likely require them to reimburse you for those assets during the division of your marital estate.
Facing Infidelity? We Will Fight For You
Our team at Lonich Patton Ehrlich Policastri has decades of experience dealing with complicated divorce cases in California. We understand the toll that extramarital affairs take, and we work hard to protect your rights and make sure you understand all your options. Call us today at (408) 553-0801 to set up a 30-minute free consultation with our family law experts.
Gretchen Z. Boger began her law career as a Deputy District Attorney in San Joaquin County from 2007 – 2010. During her tenure with the D.A.’s office, she prosecuted 17 jury trials. Ms. Boger has been practicing family law exclusively since January 2010. Ms. Boger joined Lonich Patton Ehrlich Policastri in 2013. She received her Juris Doctorate from the University of the Pacific, McGeorge School of Law. During her time at McGeorge, she received a concentration in trial advocacy.
FAQs
No. Unfortunately, it would not be possible under the current NJ law to pursue legal claim for pain and suffering due to an affair.
What is enough evidence of cheating? ›
Provide evidence.
Using photos, sexting dialogue on your spouse's phone, credit card statements with mysterious charges, hidden email accounts, or dating apps on their phone to hook up with others, you can prove the affair.
Can I sue the person my spouse cheated on me with? ›
Filing an alienation of affection lawsuit requires proof that your marriage was a happy and loving one and that the third party intentionally destroyed your marriage. Unfortunately, only a handful of states still recognize this type of lawsuit, and California is not one of them.
What does God want me to do if my husband cheated? ›
You need to be angry at the sin and angry at your spouse for sinning. God hates sin and you should as well. You should have righteous anger at the adultery. It is an infraction toward God, you, and your children.
How to confront a cheating husband without evidence? ›
Confronting a cheating spouse with no proof
You should tell them how you feel, rather than asking too many questions because asking too many questions leads people to shut down emotionally, get defensive, or even lie. Get them to talk by asking open-ended questions.
What proof do you need for adultery? ›
Evidence could include documentation of the affair, like a photo of your spouse and their sexual partner together, or an admission by your spouse. You should think carefully before deciding to pursue a divorce based on adultery. There are other ways to obtain a divorce in which you do not need to prove fault.
Is there a test to prove infidelity? ›
Infidelity can be difficult to prove, but if you need confirmation of evidence for yourself or others, forensic DNA testing is the best way to do so. Our advanced tests work for both male and females, so every philandering girlfriend, boyfriend, husband, or wife can be tested for.
What states can you sue for adultery? ›
Where Can You Sue?
- Hawaii.
- Mississippi.
- New Mexico.
- North Carolina.
- South Dakota.
- Utah.
In most cases, spouses cannot sue each other for emotional distress within a marriage due to legal doctrines such as spousal immunity and marital privilege. These doctrines aim to protect the sanctity of marital relationships by limiting legal actions between spouses. However, there are exceptions to this general rule.
What states are homewrecker laws in? ›
Have you ever wanted to sue someone you believe broke up your marriage -- a "homewrecker?" Well, in six states -- Hawaii, Illinois, New Mexico, North Carolina, Mississippi, South Dakota, and Utah -- you can. In those six states, the "Alienation of Affection" claim is an option.
The basis for punishment of stoning specifically for adultery is clearly provided in Leviticus (20:10-12) which reads: "If a man commits adultery with another man's wife, even with the wife of his neighbour, both the adulterer and adulteress must be put to death...." Further, in Deuteronomy (22:22-24), it is stated ...
How to deal with an unfaithful husband biblically? ›
Surviving Infidelity in a Christian Marriage
- Seek Forgiveness. ...
- Go for Counseling. ...
- Be Honest about Your Hurts. ...
- Be Open to Listening and Acknowledging Wrong. ...
- Recognize Negative Relationship Patterns. ...
- Agree to Establish Healthy Patterns in the Relationship. ...
- Create Opportunities for Intentional Time Together.
17 practical tips to stay strong and deal with a cheating husband
- Get all the facts straight.
- Confront.
- Let the truth sink in.
- Leave the kids out of it.
- Don't confront the other woman.
- Realize that it's never your fault.
- Allow him to explain and listen.
- Call in some support.
Use direct evidence.
If you have direct evidence, which can be eyewitness accounts or photographs of the adulterous act, then you should be able to prove adultery. However, direct evidence is usually hard to come by because the spouse committing adultery is often keeping a low profile and cheating in private.
How do you get your husband to admit he cheated on you? ›
Ask them open-ended questions that require more than a “yes” or “no” answer. Put them at ease by offering words of understanding to make them feel more comfortable admitting the truth. Pretend like you know the truth, even if you're not completely positive, to get them to confess.
What to do if your husband is cheating legally? ›
In conclusion, if your spouse is cheating on you, your primary goal will be proving their infidelity to the court. If you are the one that is involved in an outside relationship, be honest and put that relationship on pause until the divorce is final.
What qualifies as cheating? ›
Cheating, also known as infidelity, is when a person in a monogamous romantic relationship has an emotional or sexual relationship with someone else without their partner's consent.
How to prove someone has cheated? ›
Eleven common signs of cheating include:
- Changes in communication.
- Increased interest in appearance.
- More time spent away from home.
- Attitude changes.
- Lying.
- Avoidance.
- They accuse you of cheating.
- Indifference.
Guarding Their Phones
They may also panic, show aggression, or start arguments when their partner asks to see their phone. Additionally, some cheating partners may take extra steps to hide their tracks by using apps on their phone to hide their texting activities, delete messages, or lock certain photo albums.
What can justify cheating? ›
The cheating partner might also justify their actions by pointing out their partner's issues, such as being controlling, having a drug and alcohol problem, or being inattentive. Some might even say their partner has been too busy with work or the kids and that they no longer feel prioritized.
