Although California is considered a “no fault” state with regard to divorce, so one cannot file for divorce on the grounds of domestic violence, judges may consider the culpability of one or both parties with regard to domestic violence and abuse in a spousal support decision.
In order to avoid a situation where a victim of domestic violence is forced to finance the perpetrator’s standard of living, California courts operate under the presumption that alimony will not be awarded to a spouse who has been convicted of domestic violence within 5 years prior to a divorce unless affirmative evidence is presented to rebut this presumption, and convince the court that spousal support is still appropriate.
Such evidence is especially likely to be accepted in a case where the higher earning spouse may have been convicted of domestic violence, but is able to present convincing evidence that the other party has also committed domestic violence.
A judge may also consider other evidence that may demonstrate a “just and equitable” basis for rebutting the assumption, including the duration of the marriage and any anger management or domestic violence counselling courses that have been completed.
In cases where such a rebuttal is not successful, a judge is likely to eliminate an existing spousal support order or decline to award alimony, whether with regard to temporary or permanent spousal support.
The court will also hear evidence of domestic violence between the parties or toward children in the household absent a conviction, which can include police reports, any history of arrest, or conviction for other crimes, as well as an “Order After Hearing” attendant to a domestic violence restraining order, civil harassment restraining order, or criminal protective order, and can include evidence of domestic abuse that occurred earlier than 5 years prior to the divorce.
Judges in California have wide discretion to define various behavior as domestic violence and thus to weigh such behavior in a spousal support order. The court will also consider evidence of any attendant emotional distress resulting from domestic violence and abuse.
In some cases, a history of domestic violence may make an an abusing spouse more likely to settle on terms that the abused spouse prefers, in order to avoid a public proceeding that may expose some of this history.
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The dedicated, experienced spousal support attorneys at the family law firm of Lurkis, Joyce & Del Bove, LLP represent clients in alimony proceedings and all matters related to spousal support throughout the greater San Francisco Bay Area.