Are you starting to suspect your spouse is abusive? If so, you’re not alone. According to the California Department of Public Health (CDPH), “1 in 5 women and 1 in 7 men report having experienced severe physical violence from an intimate partner in their lifetime.” The number of people who experience mental, emotional, or financial abuse is even higher.
One of the most effective ways to protect yourself from an abusive spouse is to get divorced. However, this can be difficult and even dangerous if your abuser doesn’t want to end your relationship. That’s why California provides a variety of protections to victims of domestic abuse and violence during divorces. Let’s explore these protections and how they may impact your split.
How California Defines Domestic Abuse
In California, domestic violence (DV) is defined as abuse or threats of abuse when the victim and the abuser have or had an intimate relationship. Abuse is not just physical; it can be verbal, emotional, or psychological. Examples of harm covered by abuse laws include:
- Physical harm or attempted harm.
- Sexual assault.
- Making someone reasonably afraid they or someone else are in imminent danger of serious harm.
- Harassment, stalking, threatening, or hitting someone.
- Disturbing someone’s peace, or destroying personal property.
The law covers current and former married couples, domestic partners, those in dating relationships, cohabitants, and those who have children together. It also extends to close family members like siblings, parents, and in-laws, though those are less closely tied to divorces.
Impact of Domestic Violence on Divorce Proceedings
If you’re being abused under the definition above, California laws can help you end your marriage without putting yourself or your family at unnecessary risk. First and foremost, if you’re suffering from abuse, you can request a restraining order from the court to keep your spouse away from you and your family, either temporarily or permanently. If you have a restraining order in place, your abuser:
- Must stay a certain distance away from the victim.
- May lose the right to visit or custody of children.
- May be required to move out of a shared residence.
- Could face restrictions on owning firearms.
Furthermore, a DV restraining order issued during the divorce proceedings can limit the abuser’s access to joint assets and property and can set boundaries regarding personal contact and communication. This can give you substantial peace of mind while you’re sorting out the rest of your split.
Other potential impacts of abuse allegations on your divorce include:
Child Custody and Visitation
The safety and welfare of the children are the court’s primary concern. Under California Family Code Section 3044, there is a presumption that awarding custody to a person who has perpetrated domestic violence is not in the best interests of the children.
The accused party can rebut this presumption, but they must provide substantial evidence showing that they are no longer a threat and that granting custody is in the children’s best interests. The court may order supervised visitation or limit visitation rights of the abusive parent to protect the children’s safety and well-being.
Spousal Support
Domestic abuse is a factor that courts consider when determining spousal support. Under California Family Code Section 4320, if the spouse seeking alimony has a documented history of domestic violence against the other spouse, it may negatively impact their ability to receive spousal support.
If the spouse has been criminally convicted of domestic violence against the other spouse within five years before the divorce filing or any time after that, this will heavily influence the court’s decision regarding spousal support. In most cases, the Family Code bars courts from ordering abuse victims to pay their abusers spousal support in these situations.
Property Division
While California is a community property state, meaning that marital assets are generally divided equally, allegations of DV can sometimes influence the division of property, especially if the violence had economic impacts on the victim, such as incurring medical expenses or the inability to work.
The court may order the abusive spouse to pay a higher portion of the legal fees, especially if the domestic violence allegations prolonged the divorce process or necessitated additional legal resources.
Proving Domestic Violence During Divorce
In family court, the standard is typically “a preponderance of the evidence” rather than “beyond a reasonable doubt” as in criminal cases. While this is a lower threshold, proving DV in California still involves presenting compelling evidence to support the claim. First, you’ll need to gather evidence such as:
- Police Reports: If the police were called during any incidents of abuse, their reports are crucial evidence.
- Medical Records: Document any injuries with medical reports, including photographs of injuries.
- Photographic Evidence: Photos of injuries, damaged property, or any physical evidence of abuse.
- Witness Testimony: Statements from neighbors, friends, family members, or others who witnessed the abuse or its aftermath.
- Personal Documentation: Keep a detailed journal or diary entries noting dates, times, and descriptions of abusive incidents.
- Communications: Save emails, text messages, voicemails, or any other communications that might demonstrate abusive behavior.
With this evidence at hand, your attorney will help you build your case, decide how to present the evidence, and articulate the impact of the abuse.
However, there are two things to note. First, your own safety should always be your top priority. If there’s an immediate threat, contacting law enforcement or seeking a safe shelter is crucial – don’t wait until you have an official order on file.
Second, never falsely accuse your spouse of domestic violence. A false accusation can have serious legal consequences and can negatively impact your credibility and case. You may even lose custody of your children on grounds of parental alienation. Always talk to your attorney to determine if you have grounds for a DV claim in your divorce before making allegations.
Experienced Divorce Attorneys for Domestic Violence Victims
Divorce is never easy, and it becomes even more challenging in the shadow of domestic violence. Understanding how California’s laws affect divorce proceedings in such cases is crucial. Remember, taking care of your safety and emotional health is just as important as navigating the legal aspects. If you are facing this situation, please reach out to the experienced attorneys at Kaspar & Lugay LLP for the legal assistance you deserve.
