Family court judges treat domestic violence accusations very seriously during a divorce proceeding. Even though California is a community property state and a no-fault divorce state, judges can consider domestic violence charges when deciding issues pertaining to the divorce.
In addition to impacting a divorce action, domestic violence can result in criminal charges. For example, a person could be charged with domestic battery under California Penal Code §243(e) and inflicting corporal injury on an intimate partner under California Penal Code §273.5. In addition, there could be other criminal charges, depending on the facts of the case.
What Is Domestic Violence?
Domestic violence can take many forms. It is a pattern of abusive behavior against a spouse by the other spouse.
Domestic violence includes behavior such as:
- Inflicting physical injuries
Unfortunately, domestic violence can be subtle. Spouses might not recognize some behaviors as abuse, such as gaslighting. However, the abuse can cause psychological, emotional, physical, sexual, and economic harm.
California Is a No-Fault Divorce State
You can divorce your spouse in California even if they do not consent to the divorce. All you need to do is file a divorce petition claiming irreconcilable differences.
In most cases, judges do not ask spouses to explain irreconcilable differences. If the spouse confirms the marriage is irretrievably broken, it is sufficient to obtain a divorce.
The fault for a divorce typically does not impact the outcome or decisions made by judges. However, domestic violence can be an exception to the rule.
How Can Allegations of Domestic Violence Affect the Outcome of a Divorce Case in California?
Judges may consider domestic violence allegations when making decisions regarding several issues related to the divorce. Domestic violence accusations can impact divorce proceedings in the following ways:
Child Custody Decisions
Judges decide child custody based on the child’s best interest. Therefore, the judge carefully reviews the allegations when a spouse accuses the other spouse of abuse. Placing a child with an abusive or violent parent is not in the best interest of the child.
California family law creates a presumption that child custody should not be awarded to a parent who has committed domestic violence within the past five years.
However, the presumption is rebuttable. Therefore, a spouse can fight for custody by defending themselves against the presumption that they should not have custody.
When a parent with a history of domestic violence fights for child custody, the judge may consider numerous factors. The judge could consider the following:
- Whether the parent had a restraining order against them
- Other incidents of domestic violence
- Evidence that the parent completed counseling, education, and treatment programs
- Whether the parent completed parole or probations, including any violations
Even though domestic violence accusations create a presumption a parent can fight, the presumption can be challenging to overcome. For example, suppose there is sufficient evidence proving that the parent committed domestic violence. In that case, the parent must find evidence to convince the judge that granting custody is in the child’s best interest.
Domestic violence is one of the factors judges consider when deciding whether to award alimony under California Family Code §4320. Judges are unlikely to award alimony to an abusive spouse when they were convicted of domestic violence within the past five years.
A misdemeanor charge for domestic violence creates a rebuttable presumption to deny alimony to the abusive spouse. A felony domestic violence conviction prohibits a spouse from receiving spousal support.
Under normal circumstances, spouses divide marital property equally in a California divorce. California is a community property state. However, allegations of domestic violence can impact property division in a divorce. For example, a judge could give an abused spouse a more significant portion of the marital assets.
What Can I Do If My Spouse Is Abusing Me?
Call 911 if you are in immediate danger or need help because you fear your spouse might harm you. Otherwise, you can seek help from a California domestic violence organization or by contacting the National Domestic Violence Hotline. However, be careful when using the computer or your cell phone because your spouse might check your online activity and phone calls.
A San Diego divorce lawyer can also help. An attorney will explain your legal rights and what you can do to protect yourself. Your lawyer will advocate for you during the divorce proceeding, including arguing for terms that protect you and your children from continued domestic violence.