October 9, 2021
by Briana White

Divorce is never easy, but for families struggling with domestic violence, the transition can be even more complicated—especially for those who have children, need to file a restraining order, or are worried about retaliation.

Each state has different laws for handling domestic violence during divorce. In some jurisdictions, these offenses can warrant the filing of a fault-based divorce, and end up affecting the division of marital property in favor of the abused spouse. They can also impact child custody, alimony, and even result in criminal charges.

Here’s what you need to know about how domestic violence can impact your divorce in California, and what the Maples Family Law team can do to help you navigate this rocky transition.

Overview of Domestic Violence

In California, domestic violence is defined as any abuse—or threat of abuse—that comes from a romantic partner.

Naturally, this definition includes a spouse, but it actually goes further, encompassing any type of romantic relationship, such as someone you’re living with, a domestic partner, a co-parent you share a child with, and even just someone you’re dating (or used to date).

Under this definition, abuse can come in many different forms, and—according to the domestic violence guidelines on the California.gov website—can include things such as:

The act of physically hurting (or trying to hurt) someone, either intentionally or unintentionally;
Making someone think that they (or someone they love) is going to be hurt;
Sexual assault;
Harassment, stalking, threats, and disturbing the peace; and even,
The destruction of personal property.

As you can see, this type of abuse does not require physical contact with another person—or even their property—in order to be considered domestic violence. It can be as subtle as emotional abuse and threats levied against someone you love, and can even include unintentional physical harm.

But, what does this mean when filing for divorce?

Here are some of the ways that domestic violence can impact your divorce, including the division of marital property, child custody, and alimony.

Domestic Violence and Marital Property

At its most basic form, marriage is just a contract; a commitment between two people, who want to be seen as a single entity in the eyes of the law. That’s why several states allow individuals to file for divorce under fault-based grounds.

In a fault-based divorce, the court can assign blame, and hold one spouse financially accountable for their part in the marriage breakup. This is typically done by awarding the victim a larger share of the marital property.

Along with things like infidelity and drug abuse, domestic violence is one of the primary grounds used in these jurisdictions for filing under fault. That being said, California is not one of those states.

As a strictly, no-fault divorce jurisdiction, you cannot file for divorce in California using domestic violence as your grounds. In addition—because judges cannot consider guilt or blame when dividing marital property—you also cannot use domestic violence to receive a greater share of your community pot.

However, that doesn’t mean domestic violence can’t impact your divorce at all…

Domestic Violence and Child Custody

One of the biggest ways domestic violence can shape a California divorce, is in the area of child custody.

In California, custody decisions are made based on what is in a child’s best interest. This legal standard is driven—not by what parents want—but by what will serve a child’s long-term health and welfare the best.

Under these guidelines, sole versus joint custody decisions are determined by weighing factors such as:

A child’s health, safety, and welfare.
A child’s preference (if over twelve).
Each parent’s past role in their child’s life.
Each parent’s ability to care for their child, post-divorce.
Any history or threat of domestic violence.
Any history of drug abuse.

When considering domestic violence, it is not even necessary that the child has experienced the abuse themselves. In California, domestic violence is still a consideration, even if the harm was only ever carried out on the child’s other parent.

Domestic Violence and Alimony

According to the California Family Code, courts are also required to consider domestic violence when making decisions about alimony.

Alimony (or “spousal support”) are regular payments that a judge orders one spouse to pay the other, in order to help support their care after the breakup. This money is often awarded to a homemaking spouse, to help get them back on their feet after so many years out of the workforce.

In California, judges cannot require victims of domestic abuse to pay their spouse alimony, however, this is somewhat contingent on what evidence is available at the time of divorce.

A conviction of domestic violence within the past five years is the strongest type of evidence. If available, this creates a “rebuttable presumption,” which essentially means that the court has to operate as if the abuse exists/existed. As a result, a victim of this violence cannot require to:

Pay temporary or permanent spousal support; or,
Pay their spouse’s attorney’s fees from separate property.

If you don’t have a conviction, you may still be able to get an exemption from alimony. Talk to your attorney about what evidence you may need, and be sure to document any further abuse in as much detail as possible, since the state may want to file criminal charges, as well.

Domestic Violence and Criminal Charges

Domestic violence might have been the reason you decided to file for divorce, but it’s also a crime, and—depending on the severity of the offenses and the available evidence—these actions could be enough to land your spouse with criminal charges.

But what, exactly, does that mean? And how does a criminal charge differ from what you’re doing in divorce court?

Civil vs. Criminal Court

In the United States, there are two main branches of the court system:

Civil court
Criminal court

Criminal court deals with offenses like rape, theft, battery, assault, and so forth. These are harmful crimes committed by one person against another, and can result in fines and even jail time. In a criminal case, the state acts as the prosecutor against the accused.

On the other hand, a civil case is filed by an individual (or business) against another individual (or business). This branch handles pretty much everything that criminal court does not, including real estate transactions, business, contracts, probate, economics, family law, and so forth.

Divorce—like adoption and child custody—is a subset of family law, which means that these cases are generally held in civil court. However, when domestic violence is involved, civil and criminal courts often intersect.

Depending on your situation, the state of California might decide to file criminal charges against your spouse for domestic violence. If they do, these charges will be filed as a separate case, held in criminal court, and handled by a criminal court judge.

Unfortunately, while domestic violence is always a crime, it’s also often a secret crime—one whose harm doesn’t always leave a mark. Hence, in many situations, the state lacks the necessary evidence to prosecute.

California Domestic Violence Resources

It’s important to understand that—even without a bruise or scar—domestic violence is never okay. California courts take these crimes very seriously, and if you or a loved one are currently experiencing abuse, it’s critical that you talk to law enforcement (as well as your family law attorney), to figure out the best course of action in your situation.

If you don’t know where to start, or simply need help, these online resources can assist you with the process:

These sites can help you find a shelter, retain a free or low-cost attorney, and walk you through the steps for things like filing for a restraining order.

In the meantime, if the danger is immediate, don’t wait, and call the police right away.

Domestic Violence Divorce Attorneys in California

If you are dealing with domestic violence in your marriage, the most important thing to do is to keep yourself—and your children—safe. The next step is to get out of the situation as quickly as that safety will allow.

If you have more questions about domestic violence in California, and how this might affect your divorce, we want to help. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out the next best step for you.

Divorce

Types of Divorce

May 17, 2019May 24, 2019
by Angie

In the state of California, there are several “types” of divorce – but they all lead to one thing: the dissolution of your marriage. The types of divorce people discuss usually refer to the process that leads to the divorce decree.

Types of Divorce in California

When people talk about the different types of divorce, they’re generally referring to things like:

Fault-based and no-fault divorce
Uncontested divorce
Contested divorce
Collaborative divorce

Let’s take a deeper look at each of these types of divorce.

Fault-Based and No-Fault Divorce

California is a no-fault divorce state, which means you don’t have to prove that one party or the other did something wrong in order to end your marriage. Instead, you simply have to tell the court that you and your spouse can no longer remain married because you have irreconcilable differences.

A lot of people make the mistake of thinking that a spouse’s mess-up – like infidelity, for example – will have an impact on the outcome of the divorce. However, that’s not true. Cheating won’t affect the way the courts decide to divide your property or anything else, except in very rare circumstances (such as if your spouse spent all your family’s money on his or her fling, or if your spouse engaged in sexual acts in front of your children).

Uncontested Divorce

An uncontested divorce is one in which both parties are able to agree to all – or at least most – of the major issues involved. That includes things like:

Sometimes couples are able to agree to these things through mediation (which can be part of a collaborative divorce, as well), but sometimes they go back-and-forth without assistance and reach agreements on all the major issues on their own.

In an uncontested divorce, when both spouses agree on big issues, the judge will generally sign off on the couple’s arrangement – as long as it’s fair to both parties and the children involved. If it’s not fair to everyone (at least reasonably fair, that is), the judge isn’t going to agree and will most likely tell the parties to reach a new agreement or make decisions for the couple.

Related: What is divorce mediation?

Contested Divorce

A contested divorce is one in which the parties can’t reach agreements on the important issues. For example, if a couple is fine with dividing property but can’t agree on who gets the kids and when, the custody part of the divorce is contested.

It’s almost always better for couples to reach these important decisions on their own. If you and your spouse can’t agree, you’ll end up forcing the judge to decide – and usually, that happens after spending a lot of time in court (and a lot of money on lawyer’s fees). Litigating is typically more stressful than dealing with your spouse for a limited amount of time, too.

However, there are some cases in which it’s absolutely necessary to litigate. When one spouse is completely uncooperative and won’t budge (and won’t work with a mediator), for example, you don’t have a choice. In that case, you need an exceptionally tough Stockton divorce attorney in your corner.

Collaborative Divorce

Collaborative divorce, while it’s not right for everyone, is the type of divorce that leaves both parties feeling reasonably satisfied with the outcome. In a collaborative divorce, the two spouses agree to work together to find solutions for all the major issues. Sometimes they work with mediators, and sometimes they don’t – but the bottom line is that a collaborative divorce requires input and a lot of give-and-take from both parties.

Related: Divorce mediation checklist

Do You Need to Learn More About These Types of Divorce?

If you’re in Stockton and you’re considering divorce – or if your spouse has already filed for divorce – we may be able to help you.

Call us right now at (209) 546-6870 to schedule a consultation with divorce attorney Anna Maples. We’ll answer your questions about child custody, child support and other matters, as well as refer you to local professionals if you need help that we can’t provide, such as divorce counseling or asset management.

Tag: <span>Fault Divorce</span>

Domestic Violence