Spousal Support And Fault

Can a judge “punish” a party in a divorce case through the award of spousal support based upon alleged indiscretions during the marriage?  As a general rule, judges do not “punish” parties.  There may be the exception of Family Code § 271 which permits attorney’s fees to be awarded when the conduct of an attorney or a party “furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” 
Is there anything which affects the right to receive spousal support besides need and ability to pay?  Yes, Domestic violence.  Family Code §4325 generally provides that if there is a criminal conviction for misdemeanor spousal domestic violence, there is a rebuttable presumption that an award of spousal support to the convicted spouse from the injured spouse is prohibited.  In simple English, if you are the party that is to receive spousal support and you are convicted of spousal domestic violence, there is a presumption you are not entitled to any spousal support. The presumption may however be overcome. 
Subject to the domestic violence exception, temporary spousal support (during the course of the proceedings) is properly awardable without regard to the merits or procedural posture of the case. See Marriage of Askmo (2000) 85 Cal. App. 4th 1032, 1038-1040.   In fact, disposition of the spousal support issue is technically not affected by «fault» or «innocence.» To that end, Fam.C. § 2335 provides that except as provided by statute, evidence of specific acts of misconduct are not admissible in court papers.
In conclusion, while a Judge cannot per se “punish” a party by awarding more spousal support to a party because of an affair, if you are convicted for committing misdemeanor domestic violence against your spouse, you very well might be precluded from receiving any award of spousal support.  Please note that if you use community funds in the course of your affair, you subject yourself to allegations of breach of fiduciary duty.  That may affect attorneys’ fees as well as reimbursement to the community for the funds taken.  
One last thing of interest regarding spousal support.  Spousal support awards are not even mandatory.  Courts have discretion to deny spousal support altogether or to limit it.  See Marriage of Pendleton & Fireman (2000) 24 Cal. 4th 39, 52.
For all of your family law and business litigation needs, please contact the Law Offices of Richard A. Marcus (661) 257-8877.