“You’ve likely read the recent news in which hackers seized the clientele database for Ashley Madison, aka the “online affair store”, and threatened to publish the contact information of its clientele. Whether such publication will give rise to the rate of divorces is to be determined. The question is: is it relevant in family court? Legally, perhaps. Practically, absolutely.
Of course, one does not need to prove infidelity to obtain a divorce. You’ve likely heard that California is a no fault state, wherein all one needs to claim is “irreconcilable differences” as grounds for a divorce and thereby eliminating the need to prove “fault”, no matter how nefarious that fault may be. However, it is not rare that one party raises the other spouse’s infidelity in the pendency of a divorce, much to the shock, anger and objection of the other spouse and counsel.
While infidelity is legally irrelevant as to grounds for divorce, it is legally relevant with respect to claims of alleged breaches of fiduciary duties owed between spouses, including but not limited to the duty of loyalty, care, candor and management of community funds. It is not a stretch to make the argument that community funds (money earned or received during the marriage) were unilaterally used for separate purposes (payment for use of the Ashley Madison affair website, gifts made to the “colluding” party, et cetera) without the knowledge of the other spouse and certainly not for the benefit of the community. Such conduct may be considered a breach of fiduciary duty of loyalty, management of funds, disclosure, candor and related matters under Family Code Sections 721, 1101 and relate case law. The remedy for such breaches include reimbursements of such funds to the non-offending party, attorney’s fees and costs as sanctions, and possibly more.
And that’s just the legal side. On the practical side, infidelity is very relevant. It comes as no shock that an aggrieved party may wish to seek justice, revenge and retribution, even if not allowed under prevailing authority. Indeed, I often tell our clients that most questions of cost and duration of a case can be answered by addressing: (i) the facts; (ii) the law; and (iii) the personal dynamics. Infidelity may greatly weigh on personal dynamics of who is the aggrieved party who seeks justice, revenge, retribution or other relief not necessarily found in the black and letter law. For example, a simple fact and law case without infidelity as a personal dynamic may be resolved at low cost in short time. However, that same simple fact and law case with infidelity as a personal dynamic may cost more and take longer, as the offended spouse may not be so forgivable and willing to come to the settlement table in a marital dissolution.
At Hoover Krepelka, LLP, we educate, advocate and act in our clients’ best interests on all issues, including the one of infidelity now raised by Ashley Madison.