The typical lawyer answer is: Yes, and no.
When I first started practicing in 1973, California was in the beginning stages of utilizing a no-fault system in its divorce cases. As this system has evolved through the years, it became apparent that fault was creeping back into family law.
On property issues, a party’s conduct can have an impact on how the property is divided. California has enacted various statutes that outline the fiduciary duty owed by one spouse to the other. If a party violates that fiduciary duty (read in fault), there are various remedies available. If the violation is serious enough, the Court has the authority to award an asset entirely to the “innocent” spouse. In order to receive such an award, the “innocent” spouse must prove by clear and convincing evidence that the other spouse “. . . has been guilty of oppression, fraud, or malice . . .”, and that the purpose of such award is “ . . . for the sake of example and by way of punishing the . . .” other party. (Civil Code § 3294). In other words, the Court can consider the fault of a party and the remedy is to punish that party if the provisions of Civil Code § 3294 are met.
Protecting parties from domestic violence has become an integral part of California family law. If a party is found to have perpetrated domestic violence against the other, a
presumption arises that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. Once again, fault (domestic violence) has a direct bearing on the right of a parent to have custody of his/her child(ren)
A recent case from the California Court of Appeals has acknowledged that fault may be considered on the issue of spousal support. “California’s so called “No Fault Divorce” law does not require a court to ignore evidence of fault when deciding spousal support. This is especially the case when the spouse seeking support is guilty of domestic violence.” (Marriage of Schu (2016) 6 Cal. App. 5th 470; 211 Cal. Rptr. 3d 413) The Appellate Court recognized that marital fault cannot be considered on the issue of terminating the marital status, but that fault may be considered on the issue of whether a party is entitled to receive spousal support.
This case involved very egregious facts where the wife spent time in state prison because of her acts during marriage. Her acts were found to be domestic violence and as a result, she was denied any spousal support. The appellate court stopped short of saying what role fault would play in the award of spousal support in the“ordinary” case. Would having an affair, keeping a messy house, buying too many shoes, etc., be sufficient fault for the denial of spousal support? Unfortunately, the appellate court dodged this issue so stay tuned as other cases relating to this issue are brought before the Court of Appeals.