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Does an Emotional Affair Count as Cheating?

At first, it was Myspace and then it was Facebook, Instagram and Tinder. While these social media sites help old classmates, old friends, and family reconnect and stay connected, it wasn’t long before a darker side to social media was unveiled.

Soon enough, married men and women were hooking up with old flames and starting new ones through their social media accounts. Though not always consummated, these secret relationships soon got society thinking, “Is an emotional affair technically cheating?”

According to most family laws that do address adultery, it’s not “cheating” unless there is actual sexual intercourse, but millions of spouses would disagree. Most husbands and wives feel that it’s cheating if their spouse kisses someone else, and a large percentage of spouses feel that it’s cheating if their spouse has an emotional affair.

In fact, some spouses argue that an emotional affair is worse than a physical one because it means their spouse had an “emotional connection” with someone else, or that they “fell in love” with someone else.

What Does California Law Say?

If you live in California and you or your spouse had an emotional affair, especially with someone on Facebook, you may be wondering, “Can an emotional affair affect spousal support or child custody?” In a word, no.

California is a no-fault divorce state, which means that family law judges are not concerned with who did what or why, unless it has to do with domestic violence. Judges are not typically concerned with one night stands or affairs unless: 1) the adulterous spouse spent the marital assets on the paramour, or 2) the cheating spouse neglected their children or put them at risk in order to have the affair.

So, your spouse could be having a sexual relationship with their co-worker or your next-door neighbor and the judge wouldn’t be concerned, nor would the judge be interested in the evidence unless one of the two above exceptions apply. Not only that, but the cheating would not under most circumstances affect spousal support or child custody. But, that’s not the case in all states. In some states, such as Texas or Pennsylvania, cheating can affect spousal support – but not in no-fault divorce states like California.

If you’ve been saving your spouse’s scandalous direct Facebook messages or texts as evidence in your upcoming divorce case, your efforts may be futile. Additionally, you could be violating state and federal privacy laws if you don’t have your spouse’s express permission, which is doubtful.

Related: 8 Subtle Signs of a Cheating Spouse

If you have further questions about how emotional or actual cheating can affect a California divorce case, contact us to meet with a San Fernando divorce attorney!


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