Is California Still A No-Fault Divorce State?

What is fault and how does it affect a California divorce today?

Is California still a no-fault divorce State? The answer is both yes and no.

If you asked people whether California is a no fault divorce state, many would answer "Yes." After all, a spouse may divorce another spouse based on irreconcilable differences. A spouse does not need to give the Court another reason as to why that spouse wants to get divorced.

If you limit the definition of fault to the reason for the divorce, California remains a no fault State. However, if you delve into California law's evolution of fault in divorces, you will learn the notion of fault now may have a big impact on divorcing spouses, especially in those marriages that involve domestic violence.

Fault now affects the timing of the divorce and the result. For these reasons, California has become to some extent a fault-based divorce State.

We hope you enjoy this article on California's status as a no-fault state. We wrote this so husbands and wives understand fault does play a role in a divorce if the spouses are unable to amicably resolve their issues. Our family law firm has offices in Los Angeles, Orange County and San Diego. If you need help with your divorce, please contact us. Good men and women deserve great family law representation.

- Yvette Ochoa, Partner

Here are some examples. Our main focus is on domestic violence, because it is the best example of how fault became a factor in divorce.

Domestic violence during the marriage used to have little-to-no impact on financial issues in a divorce

Domestic violence used to be about protecting the victim and/or children of the marriage through a restraining order while, in appropriate cases, criminally prosecuting the perpetrator in criminal court.

California family law then evolved to make perpetration of domestic violence, no matter what the circumstances, a factor on financial issues, such as spousal support, and eventually attorney's fees and the division of the spouses' retirements.

The fault based analysis for domestic violence started with making domestic violence a factor when determining the length of time a spouse may receive support. For example, if a wife was a domestic violence victim, the husband's perpetration of domestic violence (the fault) was a factor the court could take into consideration when determining the amount or duration of spousal support.

That fault based analysis in California divorces then expanded to limit and even eliminate spousal support for a domestic violence perpetrator.

California family law evolved further to include attorney's fees and division of retirements into that fault based analysis.

The Family Code first created a rebuttable presumption that a spouse who is criminally convicted of domestic violence within five years before the divorce filing or any time after the divorce filing should not receive temporary or final spousal support. The presumption is rebuttable. Thus, the spouse perpetrating domestic violence could set forth evidence as to why the court should not apply this code section.

The distinction between a misdemeanor and a felony conviction of domestic violence

Initially, California law did not distinguish between a misdemeanor and a felony conviction of domestic violence. This is no longer the case. The fault-based analysis now punishes felony domestic violence convictions more severely in divorce cases compared to misdemeanor convictions.

First, we should look at California Family Code 4320, in part. We will only look at the part of code section that involves domestic violence.

In ordering spousal support under this part, the court shall consider all of the following circumstances: …

…(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.

One of the factors a court must consider when making a spousal support order is a spouse's criminal conviction for abuse.

Notice section 4320 references two other separate code sections. The first is 4324.5. The second is 4325.

For a misdemeanor domestic violence conviction, here is what Family Code 4325 states regarding spousal support, in part.

"(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…

…(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."

- Family Code 4325

For a felony domestic violence conviction, we look at Family Code 4324.5, which states the following, in part.

"(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…

…(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."

- Family Code 4324.5

Fault from domestic violence affects date of separation, attorney's fees and even division of retirements

As you will read below, California law and the Family Code does not limit the punishment for domestic violence to spousal support.

For misdemeanor convictions, here is what California Family Code 4325 states, in part.

…(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

…(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:...

- Family Code 4325

For felony convictions, here is what California Family Code 4324.5 states, in part.

…(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…

- Family Code 4324.5

Why does California make fault from a domestic violence incident a factor on financial issues?

California's public policy is to discourage domestic violence and to punish anyone who commits domestic violence. This public policy is the reason these code sections exist. On spousal support, California makes domestic violence a factor of fault, because a domestic violence perpetrator should not receive financial help from the person he or she abused. This makes sense. For a victim to finance an abuser's lifestyle seems inherently outrageous.

Do the fault-based provisions related to the division of retirement plans go too far?

Imagine this scenario.

  • A husband and wife are married for 30 years.
  • The spouses have a marriage free from domestic violence for 29 of those years.
  • One of the spouses then commits infidelity. To make this example easier, let's say the spouses are a husband and a wife.
  • The husband, who is the income-producing spouse, committed infidelity.
  • The wife is so angry she commits an act of domestic violence against the husband.
  • It is an isolated incident. The domestic violence does not result in any long-term injury to the husband, although it did result in scratches or a bruise.

California criminal law does not distinguish between isolated or repeated incidents. The wife's one act may result in a criminal prosecution and conviction.

Either a misdemeanor or felony conviction places the wife's ability to receive her one-half community property interest of her husband's retirement, which accumulated over the 30 years of their marriage, in jeopardy. A felony conviction makes the jeopardy a greater reality.

Is that reasonable? Should a wife in that situation risk losing spousal support and her share in her husband's retirement? You may think "Yes," and you would not be wrong to think this. However, in this article, we want to emphasize that fault plays a role in divorces and the consequences of that fault may be severe in domestic violence cases.

A conviction for attempted murder goes further with respect to those consequence in a divorce.

California Family Code 4324 states the following:

In addition to any other remedy authorized by law, when a spouse is convicted of attempting to murder the other spouse, as punishable pursuant to subdivision (a) of Section 664 of the Penal Code, or of soliciting the murder of the other spouse, as punishable pursuant to subdivision (b) of Section 653f of the Penal Code, the injured spouse shall be entitled to a prohibition of any temporary or permanent award for spousal support or medical, life, or other insurance benefits or payments from the injured spouse to the other spouse.

As used in this section, "injured spouse" means the spouse who has been the subject of the attempted murder or the solicitation of murder for which the other spouse was convicted, whether or not actual physical injury occurred.

- Family Code 4324

Domestic violence or child abuse without any criminal conviction is a fault factor on financial issues in a divorce

Domestic violence against a spouse's child is a factor in spousal support orders regardless of any criminal conviction. The same is true with child abuse.

California Family Code 4320(i) specifically makes the following a factor when the court determines the amount and duration of spousal support:

(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.

- Family Code 4320(i)

A domestic violence restraining order can trigger this code section. A finding by the court that a spouse committed abuse against a child can trigger this code section. Even a situation that does not involve a conviction or a restraining order still allows the Family Court to use this code section when evaluating spousal support.

Domestic violence is not limited to physical abuse. California law defines domestic violence broadly and includes emotional distress resulting from the domestic violence.

Is fault during the marriage other than domestic violence a factor in a California divorce?

Yes, fault is a factor in other respects. A discussion of all those situations is beyond the scope of this article.

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