How does domestic violence impact financial issues in a California divorce?
California is a no-fault divorce state. This means that the spouse asking for a divorce does not have to prove the other spouse did something wrong in order to get divorced. For example, it is not necessary to prove that you need a divorce because of domestic violence, an affair, substance abuse, or any other reason.
No-fault divorce also means that California law generally does not punish one spouse by ordering them to pay more spousal support or by awarding less property, even when there is proven domestic violence.
That said, there are a number of different ways that a finding of domestic violence can impact a California divorce. Two examples are child custody and spousal support.
In a California divorce, a family law court may order one spouse to pay the other a specified amount of money on a regular basis, usually monthly. These payments are called “spousal support," commonly known as “alimony” or "spousal maintenance."
For example, suppose that Husband and Wife are getting divorced in Los Angeles. During the marriage, Wife earned significantly higher income than Husband. Further, Husband was abusive and Wife has proof. In this scenario, Wife may be wondering if she will have to pay her abuser spousal support.
When deciding whether spousal support is owed, the amount, and the duration, Los Angeles judges apply the many factors listed in Section 4320 of the California Family Code. One of these factors is whether the relationship involved domestic violence.
This means that the court may decline to award spousal support or order less than it otherwise would have. However, this presumption is not automatic.
If domestic violence and spousal support are issues in your case, it is critical to protect yourself by hiring an attorney with experience presenting this type of case. You may only have one, or very few, opportunities to present your case to the judge, and a finding of domestic violence can significantly impact your financial rights.
How does domestic violence impact child custody in a California divorce?
If the court finds that a parent perpetrated domestic violence against the other parent, the child, or the child's brothers or sisters, within the last five years, there is a presumption that the parent who committed the acts should not receive joint or sole legal or physical custody of the child.
Under these circumstances, the court is more likely to grant the non-perpetrator parent sole legal and physical custody.
Sole legal custody means that one parent has the right and the responsibility to make the decisions relating to the health, education, and welfare of a child without requiring the consent of the other parent. These decisions include school enrollment, medical care, travel abroad, and more.
Sole physical custody means that a child resides with and is under the supervision of one parent, subject to the power of the court to order visitation, also known as parenting time, to the "non-custodial" parent.
To determine parenting time in a child custody case involving domestic violence, the court will look at the best interests of the child based on the evidence in each specific case.
Every case is different. In some cases, the court may suspend parenting time completely or order supervised visitation. In other cases, the court may order the parents to share equal parenting time and allow the parents to communicate briefly and peacefully to facilitate court-ordered visitation only.
California Family Law Judges are required to look at the following factors in a child custody case involving domestic violence:
Is it in the child's best interest to give the parent joint or sole custody?
Did the parent complete a batterer's treatment program that meets the criteria of the California Penal Code.
If alcohol or drug use was involved, one factor is whether the parent complete an appropriate counseling program to address those issues.
Whether the parent completed a parenting class if the Family Court determines that was appropriate.
Whether the parent is on probation or parole, and whether he or she has complied with those terms.
Whether the parent has complied with the restraining order terms that were issued.
Whether there has been further domestic violence