Domestic abuse is an epidemic in the U.S., affecting marriages across all types of demographics and socioeconomic backgrounds. Furthermore, domestic abuse often plays a role in many divorces, as partners seek to remove themselves and their children from an abusive and dangerous environment. While divorce in California is granted without proving fault by either spouse (meaning it is not necessary for either spouse to present the court with a reason such as abuse for why a divorce should be granted), a history of domestic abuse can affect spousal support, also called “alimony,” decisions.
The Presumption Against Awarding Alimony to Convicted Abusers
Not all forms of domestic abuse necessarily meet the standard for a criminal conviction in California – and many instances of domestic violence go unreported – but, under California Family Code Section 4325, there is a rebuttable presumption against awarding spousal support payments to a spouse who has been convicted of domestic violence perpetrated against the other spouse within the past five years.
Thus, if a husband was convicted of domestic violence perpetrated against his wife in the past five years, there is a presumption that he should not receive a temporary or permanent spousal support award from her. This presumption, however, may be rebutted if the husband presents evidence to the court that he in fact was also a victim of domestic violence perpetrated by the wife, as well as any other evidence a court deems just and equitable to be heard.
Domestic Abuse Without a Conviction Will Also Be Considered
Even if there was no conviction for domestic abuse, a California court determining a final spousal support award in a divorce may consider the history of domestic violence between the parties. This is just one of many factors that a court will consider, however, in determining spousal support, and the law does not provide a specific direction in how a history of domestic violence should be considered in conjunction with other factors.
In general, California family court judges have significant discretion in setting the amount and duration of spousal support awards (which can last for years and thus have an enormous financial impact on both spouses over time), and, in addition to domestic violence matters, a judge will consider other issues such as the earning capacities of both parties, the assets held by both parties, the standard of living in the marriage, the duration of the marriage, and so on. That said, demonstrated evidence of domestic violence does have the potential of having a significant effect on both the amount and duration of spousal support that is awarded, especially when a spouse can present a compelling case to the judge for why domestic violence does affect a spouse’s need for support, for example having to move to another location or obtain therapy.
Obtaining a Domestic Restraining Order
While a history of domestic violence does have the potential to affect not only spousal support but custody, visitation, and property distribution matters as well in a divorce, those currently experiencing the threat of domestic violence should work with an attorney and/or law enforcement to immediately take steps to protect themselves and their family through obtaining a domestic violence restraining order.
For any questions on family law in California, contact the Law Office of Kelley C. Finan today to schedule a consultation to discuss your circumstances.