Just last month the Golden Globe Awards gave the Best Television Series Award to the Showtime series, “The Affair”. The program depicts two people each independently recalling the emotional effects of an affair that they began when they met during a summer trip. While the focus of the program revolves around the emotional impact of the affair the issue portrayed calls into question the cost of an affair and whether in a no-fault divorce state there is any compensation to the aggrieved party.
Last summer U.S. News and World Report quoted a survey finding that people involved in affairs spend an average of $444 per month on them. This includes such things as hotel bills, meals, and activities that they engage in with their extra-marital partners. The “average” hotel bill cost was $123, $162 on dinners and drinks and $54 on gifts. Undoubtedly, these expenses would be much higher on the Westside of Los Angeles. This being a ‘no-fault’ divorce state, the Family Code does not allow a spouse to recover damages for such things as emotional distress against the cheating spouse. While one could institute a personal injury claim for infliction of emotional distress, or a battery claim if a sexually-transmitted disease were passed on to the innocent spouse, those claims require the filing of a separate civil action tried in a civil, as opposed to family law, courtroom. From strictly a family law perspective, certain financial claims do exist that can be resolved or adjudicated in the course of a divorce proceeding. These include claims for misappropriation of assets. These claims are essentially efforts to recapture the funds that were spent without the consent of the spouse who did not know that community property moneys were being expended. Additionally, there are potential claims for breach of fiduciary duty which could arise in various circumstances, such a transferring assets to the paramour, or using the proceeds of a community-owned business to support that person. Claims for misappropriation result in the recovery to the non-offending spouse of half of the funds expended, those for breach of fiduciary duty can involve the recovery of the entirety and in certain instances penalties, depending on the level of conduct involved. Unfortunately, it is often times costly to try and assess the value of these claims. People involved in affairs don’t generally leave a paper trail. Depending on the length of the affair and the behaviors involved, there are situations when these claims can amount to significant dollars. The best way, of course, to avoid getting into a situation where such a claim can arise is to try and maintain good communication in your marriage and to make a conscious effort to deal with relationship issues when they arise, including getting professional assistance. In these ways, you may be able to avoid not only the financial losses sustained in an affair, but more importantly, the emotional losses and the significant attorney’s fees that be occasioned in a divorce.