Divorce and Domestic Violence / by Cassandra Hearn

Love shouldn't hurt

Domestic violence is a problem that unfortunately continues to persist in this country today. Many statistics indicate that California has a higher rate of domestic violence than the national average, which makes it even more important for divorce litigants in this state to be well aware of their rights in relation to domestic violence and how domestic violence may weigh in to a divorce case. California is a no fault state for divorce, so wrongdoing by either spouse is usually of very limited relevance in a divorce case. However, in the case of domestic violence, fault does come into play.

California Family Code section 4325 discusses spousal support and domestic violence convictions. This provisions states that if the person requesting spousal support has a conviction for domestic violence against the potential paying spouse within the last five years, there is a rebuttable presumption that spousal support will not be awarded. This means that the abusing spouse must present evidence to the court to rebut that presumption. In addition, code 4320 also provides that documented domestic violence is a factor that a court must take into account when determining spousal support. It is important for a spouse alleging domestic violence to take note of the provision for “documented” support. This does not necessarily require a past conviction, but it does mean that a court will not be required to take allegations into account where those allegations are not supported by past documentation, such as police reports made at the time of the abuse.

California law also recognizes that domestic violence can have a seriously damaging effect on children, even when the children are not the direct victims of the abuse. The goal in any child custody determination is to make an order that protects the health and well-being of a child, and the legislature recognizes that domestic violence in the home is detrimental for children. To that end, a judge is required to take domestic violence into account when making a child custody or visitation determination. This domestic violence could be against any child that the abusive parent is related to, any child that the abusing parent had a caretaking relationship with, another parent, or a current or past roommate or love interest.

We have extensive experience with helping our clients in situations involving domestic violence. Call us today at 619-800-0384 for a consultation to talk about your divorce and how domestic violence will impact you and your future.