Can Domestic Violence Affect Alimony in California?
- 06 02, 2020
- Irwin & Irwin
- Domestic Violence
While marriages can end for many reasons, some spouses decide to separate and file for divorce due to domestic violence. In this situation, the time leading to the separation was likely traumatic and might have involved arrests and possible restraining orders against an abuser. When it comes time for the divorce case to get underway, will domestic violence impact certain aspects of the divorce, such as alimony?
Each state is different, and California divorce issues will be determined in accordance with California law. The following are some basics about how domestic violence might impact an alimony – also known as spousal support – determination in a California divorce. To learn about your rights and possible outcomes in your specific situation, please consult with a divorce attorney you can trust.
California Divorce Law
In some states, cruelty or other forms of domestic abuse can be cited as grounds for divorce, and the misconduct of one spouse will be a theme throughout the divorce case. However, California law only allows for no-fault divorce. This means you cannot cite misconduct as grounds for your divorce, and you can only cite “irreconcilable differences.”
No-fault divorce does not require you to prove wrongdoing by your spouse to get a divorce, which can save time and money in many cases. But what happens if you want the court to consider domestic violence when ruling on aspects of your divorce like spousal support? Fortunately for victims, California family courts will consider domestic violence when issuing alimony awards.
Alimony Determinations in California
To know how domestic violence might impact your alimony order, you should first understand how California courts calculate and award alimony. Spousal support is intended to provide financial support from a spouse who has the ability to pay to a spouse who is unable to support themselves right away following the divorce.
In many situations, divorcing spouses will have a disparity in earning ability, and the spouse with lesser means should receive support to maintain their quality of life, while they obtain the skills or education needed to support themselves. Often, this disparity exists because one spouse forewent a career to care for the household and family, and that spouse should not have to struggle because of this sacrifice while the primary earner thrives.
Alimony is often one of the most hotly contested aspects of a divorce case, as many spouses fight having to pay support to their ex. For this reason, the issue often goes before the court for the judge to decide if the spouse requesting support should receive it. In doing so, the court should consider many factors, such as the receiving spouse’s:
- Work history
- Marketable skills
- Present earning capacity
- Potential earning capacity in the future
- Contributions of the spouse to the marriage (non-financial)
- Age and health
- Length of the marriage
Courts will also consider the paying spouse’s ability to provide support, and well as whether there is evidence of domestic violence.
Domestic Violence Considerations in Alimony Decisions
California law requires that family courts take documented evidence of domestic violence into consideration when making these decisions. Specifically, courts should never order a spouse to provide alimony support to a domestic abuser. For alimony purposes, domestic violence can include:
- Physical assault
- Sexual assault
- Emotional abuse and threats
Documentation can include criminal convictions, as well as other reliable proof.
Specifically, if there was a criminal conviction of domestic violence in the five years prior to a divorce, the court will presume that the convicted spouse should not receive spousal support. This can be a rebuttable presumption, however, which means the convicted spouse still has an opportunity to present arguments to rebut the presumption. One common argument is to provide proof that both spouses committed domestic violence, so the playing field should be considered even. This is not always successful, however, and the spouse convicted of domestic violence often will not receive an alimony award.
New Changes to California Law
In 2019, the law regarding domestic violence and rebuttable presumptions regarding alimony awards changed. The California Family Code used to state that someone convicted of sexual domestic violence was prohibited from receiving alimony, while non-sexual domestic violence convictions would lead to a rebuttable presumption against alimony.
Now, the new family law states the following:
- Spouses convicted of a domestic violence felony offense – sexual or not – is banned from receiving spousal support
- Spouses convicted of a domestic violence misdemeanor will have a rebuttable presumption against spousal support
There are also additional types of evidence under the updated law that a spouse can present to demonstrate that domestic violence occurred. In addition to criminal convictions, a spouse might be able to present no contest pleas to domestic violence charges or proof of a protective order they obtained against the abusive spouse.
False Accusations of Domestic Violence
Unfortunately, some spouses will take drastic measures to try to gain any type of advantage in their divorce case. Other spouses might simply be vengeful and want to harm their spouse’s reputation and future. This means that some people might falsely accuse a spouse of domestic violence.
Some false allegations can go very far, including having the falsely accused arrested and charged with a crime. Some spouses will follow the narrative and obtain a protective order to try to gain full child custody, get the residence, and more. Unfortunately, if the lies get this far, that spouse can use such evidence to prove domestic violence to avoid paying alimony support.
How an Experienced Alimony Lawyer Can Help
Whether you are seeking alimony and have been accused of domestic violence, or you are trying to prevent paying alimony because your spouse committed domestic violence, it is essential that you have the right lawyer handling your divorce case. While the law might aim to protect domestic violence victims during the divorce process, complications can arise, and spouses can bring false allegations that are too convincing. You want to have someone protecting your legal rights to alimony or against paying wrongful alimony.