Question: About six months ago, I found out that my husband had been unfaithful for the past few years. We have gone to counseling with a marriage and family therapist, and my husband has been working with his own therapist.

He has been very apologetic, and he even tells me that he is working hard to resolve the psychological issues that caused his behavior in the first place. I believe that he is trying, and he appears to be putting what happened behind him.

But I am having a much harder time getting over this, and my resentment only seems to be growing. I got really upset last week when I reviewed a number of old bank statements, and I saw that a lot of money was withdrawn from our accounts during the weekends that he was away. Although I haven’t asked him directly, it seems obvious that a lot of money was spent on girlfriends.

I am mad about the money, but I am also concerned about the custody of our two kids if we divorce. Given how he has acted, how can I trust him with them? If I decide to go through with a divorce, will he have to account for his behavior with the court?

Answer: In a divorce proceeding, your husband will be called to account, but there will not be any great moral reckoning. Both of you will be accounting for the division of community property you have acquired over the course of your marriage and your earnings for the purposes of child and spousal support.

But California is a “no fault” divorce state, which means that no one has to show why the marriage fell apart or determine who is to blame.

Even though your husband’s infidelity has devastated your marriage and disturbed your life, the court will treat your decision to divorce the same as if it was mutual. Broken wedding vows are not treated like a breached contract where the injured party can receive damages for lost expectations.

That said, you can seek reimbursement from your husband for the money that he spent on extramarital affairs. California is a community-property state, which means that your and your husband’s earnings during marriage are community property to which you both own an equal and undivided interest. You each have fiduciary duties to one another, and he cannot spend community property on his girlfriends and not account for it.

With respect to custody of the children, your husband’s behavior might be raised. If his parental judgment is impaired as a result of an untreated psychological issue, the court may use that evidence to render a custody decision.

But any custody decision will center on your husband’s relationship with the children, not his relationship with you. Unless you can show that his infidelity had a direct impact on the safety or welfare of the children, it is unlikely his behavior will influence the court’s decision.

You mention that your husband appears to be mending himself while your resentment is growing. This is not uncommon among people who discover such a breach of trust by a partner, particularly when you only discovered his falsehoods six months ago. You may want to give yourself some time to heal.

The ultimate decision to leave a marriage is purely personal, and it can only be arrived at after a deep consideration of all the facts and circumstances. Divorce may provide freedom from a relationship that has caused you a lot of pain, but the legal process itself will rarely offer catharsis for a person who has suffered from an unfaithful spouse.

Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at

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