Domestic violence and spousal support often cross paths in a divorce
We all know California is a no-fault state when it comes to divorce. However, you may be surprised that there are certain areas of divorce and family where fault is actually a factor. A domestic violence conviction and its effect on California spousal support is one of those areas.
In a divorce case where a spouse has been convicted of an act of domestic violence against the other spouse within 5 years prior to the dissolution proceeding (typically with a petition for dissolution) being filed or any time after that, there is a “rebuttable presumption” that the convicted spouse should not receive a spousal support award.
Some of you may have said, “wow”.
Wow is right but don’t confuse the word rebuttable with “conclusive.”
Here is Family Code section 4325:
"(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.
(b) The court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence."
The words rebuttable presumptions means it is not automatic. The convicted spouse can submit evidence to “rebut” the presumption against him or her. It is possible and it does happen, especially in cases where there was domestic violence by each spouse against the other. The court can take any other factors that it deems to be just and equitable to rebut this presumptions.
Why does this rule exist? California family law appellate cases have stated that this rule is there to avoid victims of domestic violence from financing their own abuse.
There does not have to be a conviction for the court to take domestic violence into consideration
Although it does not create the same type of presumption, California Family Code 4320(i) states:
"(i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
(1) A plea of nolo contendere.
(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3) Any history of violence against the supporting party by the supported party.
(4) Issuance of a protective order after a hearing pursuant to Section 6340.
(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence."
The rules apply to temporary spoual support and the final order
There is of course the concern of false allegations and such a rule prompting a spouse who has a spouse support exposure to falsify domestic violence allegations and then press forward to obtain a criminal conviction.
The most obvious example of this is a spouse who engaged in self-inflicted harm and injury and then contacts the police and claims his or her spouse committed the violence. This is one reason any husband or wife whose spouse is predisposed to engage in such behavior should think long and hard as to whether it is wise to continue living under the same roof and being alone with that spouse.
If you have a case that involves domestic violence, whether you are the actual victim or you are being falsely accused, the assistance of a family law attorney who is experienced in handling domestic violence cases is important. Furthermore, you may need a knowledge criminal defense lawyer.