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.
Misdemeanor domestic violence conviction and its affect on spousal support
In a divorce case where a spouse has been convicted of an act of misdemeanor 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.
Here is Family Code section 4325:
(a) In a proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply:(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.
(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(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.
(d) The court may determine, based on the facts of a particular case, that the injured spouse is entitled to up to 100 percent of the community property interest in the injured spouse's retirement and pension benefits. In determining whether and how to apportion the community property interest in the retirement and pension benefits of the injured spouse, the court shall consider all of the following factors:
(1) The misdemeanor domestic violence conviction, as well as documented evidence of other instances 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 emotional distress resulting from domestic violence. The court shall also 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.
(2) The duration of the marriage and when, based on documented evidence, incidents of domestic violence, as defined in Section 6211, occurred.
(3) The extent to which the convicted spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the convicted spouse to devote time to domestic duties.
(4) The extent to which the convicted spouse contributed to the attainment of an education, training, a career position, or a license by the injured spouse.
(5) The balance of the hardships to each party.
(6) Any other factors the court determines are just and equitable.
(e) As used in this section, the following definitions apply:
(1) "Domestic violence misdemeanor" means a misdemeanor offense for an act of abuse, as described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject of the domestic violence misdemeanor for which the other spouse was convicted.
(f) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.
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.
Felony domestic violence conviction and its affect on spousal support
The rule for felony convictions is far more severe. Family Code 4324.5 states the following.
(a) In any proceeding for dissolution of marriage where there is a criminal conviction for a violent sexual felony or a domestic violence felony perpetrated by one spouse against the other spouse and the petition for dissolution is filed before five years following the conviction and any time served in custody, on probation, or on parole, the following shall apply:(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.
(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(4) The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
(b) As used in this section, the following definitions apply:
(1) "Domestic violence felony" means a felony offense for an act of abuse, as described in Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject of the violent sexual felony or domestic violence felony for which the other spouse was convicted.
(3) "Violent sexual felony" means those offenses described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code.
(c) If a convicted spouse presents documented evidence of the convicted spouse's history as a victim of a violent sexual offense, as described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code, or domestic violence, as defined in Section 6211, perpetrated by the other spouse, the court may determine, based on the facts of the particular case, that one or more of paragraphs (1) to (4), inclusive, of subdivision (a) do not apply.
(d) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.
As you can read, many parts of this code section are conclusive.
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 (rebuttable or conclusive), 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.
Our family law firm represents victims of domestic violence and those falsely accused. We do not represent those who perpetrated domestic violence or against whom there has been any finding of domestic violence in family court or criminal court.