During Domestic Violence Awareness Month, renewed attention is focused on this issue experienced all too often in relationships. According to the Centers for Disease Control, 41% of women and 25% of men experience physical abuse, sexual violence, or stalking by an intimate partner at some point in their lives. Further, a survey on intimate partner violence in California revealed that 460,000 women were the victim of physical and/or sexual partner violence in 2023 alone.
California is a no-fault divorce state, meaning domestic violence has no bearing on the whether you can be granted a divorce, but it can have a profound effect on the issues which arise in your divorce proceeding. The law provides protection for those who’ve suffered from abuse in matters of child custody and spousal support. The law can also offer you protection from your abuser. Here’s what to know about how California defines domestic violence and what rights survivors have when seeking a divorce.
- What Is Considered Domestic Violence in California?
- Protective Orders
- Child Custody and Domestic Violence
- Spousal Support and Domestic Violence
- Property Division and Domestic Violence
Are You A Domestic Support Survivor Seeking Experienced Legal Representation?
What Is Considered Domestic Violence in California?
The term “domestic violence” may conjure up images of a battered spouse, but the law recognizes that abuse can take many forms aside from physical violence. In 2021, new subsections were added to California Family Code § 6320 that included the concept of “coercive control”—“a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty”—as conduct that can be prohibited through a restraining order. Examples given in the statute include isolating the victim from family or friends, controlling their communications or finances, pressuring them to become pregnant or interfering with their birth control, and similar acts. This recognizes that abuse may not take the form of overtly threatening or violent acts, much less always leave physical injuries or scars.
Protective Orders
In situations of domestic abuse, leaving can escalate the risk that an abuser will lash out. The risk of retaliation can make the period immediately after an abused spouse takes steps to end their marriage the most dangerous. When there is a fear of immediate harm, victims can be granted a temporary restraining order (up to 25 days) that provides legal protection until a hearing can be held on granting a permanent restraining order (up to 5 years). Such orders can require that the restrained person have no contact with the victim and/or the minor children, stay a certain distance away from them, move out of a shared family home, provide spousal and/or child support, and more as ordered by a judge. Temporary restraining orders are granted “ex parte,” meaning that the other side does not need to respond for the judge to make a decision. However, a permanent restraining order, which can be in force for up to five years and which may be renewed permanently, does require a court hearing. To secure more than a temporary restraining order, the victim will need to show convincing evidence of the abuse. The assistance of an experienced domestic violence divorce attorney can be critical in building and supporting an effective argument.
Child Custody and Domestic Violence
With domestic violence and divorce in California, the court always prioritizes the best interests of the child in deciding matters of physical and legal custody. In ordinary situations, this usually means some form of shared custody to preserve the relationships the child has with each parent. That is not the case in situations of domestic violence, particularly when a restraining order has been issued or there has been a conviction for domestic violence. In situation where a parent has committed domestic violence within the previous five years (as shown by a conviction or restraining order), Family Code § 3044 specifies that giving sole or shared custody to the abuser would be against the child’s best interests, and it is up to the abuser to provide evidence to overcome this legal presumption. Even if domestic violence is only alleged, the judge must consider it and provide justification for any award of custody or unsupervised visitation to the abuser.
Spousal Support and Domestic Violence
Domestic violence can also influence spousal support awards, because the law prohibits requiring the victim to pay support to a spouse who has been convicted of domestic violence felony within the previous five years. If the conviction is for a misdemeanor, the law presumes such support would be prohibited, but the convicted spouse has an opportunity to present evidence to make a case for receiving any support. A history of domestic violence is also one of the factors that can be considered by the court in determining a spousal support award, even if there is not a criminal conviction.
Property Division and Domestic Violence
As a community property state, California considers the assets earned or gained during the marriage to belong equally to both spouses. However, in the case of a domestic violence conviction in a divorce, the injured spouse can keep some or all of the convicted spouse’s community property interest in their own retirement and pension benefits. In addition, in situations where there is a judgment for civil damages for domestic violence, a judge can potentially enforce that judgment against the abuser’s share of community property.
Compassionate Domestic Violence Divorce Attorneys in the Silicon Valley
If you’ve mustered the courage to divorce a violent or emotionally abusive spouse, the immediate support you obtain can be vital to successfully breaking free. Given the wide range of issues that can be affected by domestic violence in divorce proceedings, it is essential for domestic violence survivors to seek experienced legal representation as soon as possible to protect not only their immediate safety, but also the well-being of their children and their long-term financial well-being. The expert family law attorneys at Hoover Krepelka can help you build an effective case to protect your rights and secure your safety. To schedule a consultation, fill out the form below today.
———————————————————————————————————————————————————————
