Domestic Violence and Divorce


The purpose of domestic violence laws in California is to keep homes safe and to protect individuals from abuse by other household members. Because married couples live together under the same roof, domestic violence laws apply to married couples. In particular, California’s domestic violence laws protect against abuse that one spouse commits against the other spouse. In cases where a married couple has children, and the couple decides to divorce, the question of whether the marriage involved domestic violence will play an influential role when it comes to deciding issues regarding property division and support.

When a court dissolves a marriage that involves domestic violence, the court’s primary goal will be to look out for the abused spouse’s future, as well as the future of the couple’s minor children.

How Does Domestic Violence Factor into Your Divorce?

Allegations of domestic violence during a marriage are extremely serious and play a major role in the outcome of a couple’s divorce proceedings. Domestic violence is especially important with regard to:

  • The abused spouse’s future safety
  • Physical and legal custody of the couple’s children
  • The way in which the couple’s property will be divided
  • Payment of both child and spousal support

Is Domestic Violence Grounds for Divorce in California?

California has two basic legal grounds for divorce. One is irreconcilable differences that lead to a marriage’s “irremediable breakdown,” and the other is a spouse’s “permanent legal incapacity to make decisions.” Although domestic violence is not an enumerated ground for divorce, per se, it can certainly be an “irreconcilable difference” that leads to a marriage’s permanent breakdown. Moreover, the presence of domestic violence in a marriage becomes especially important when reviewing child custody decisions.

California Is a No-Fault Divorce State

California is a no-fault divorce state. Therefore, a party who wishes to divorce their spouse need only show that they are seeking a divorce because of irreconcilable differences that have caused irreparable harm to the marriage. Unlike in a fault-based state, divorcing parties in California need not go into the specifics about why they need a divorce or why their marriage is beyond repair. However, domestic violence that occurs between married spouses is always a relevant subject in divorce proceedings, and courts want to know about it.

In cases where a divorcing spouse also wants to seek protection for themselves and their minor children, they may ask the court to issue a Domestic Violence Restraining Order. In that situation, the abused spouse will need to disclose details surrounding the specific incidents of abuse, allowing the court to make a determination about granting or denying the requested restraining order.

How Does Domestic Violence Affect a Divorce?

The presence of domestic violence in a married couple’s relationship can significantly affect subsequent divorce proceedings. Judges in California’s Family Court System can decide various legal issues in an abused spouse’s favor if that spouse (or their lawyer) introduces evidence that shows the presence of domestic violence in the relationship. However, the other spouse or their attorney can introduce rebuttal evidence during the legal proceedings.

In California divorce proceedings, the presence of domestic violence in a couple’s relationship can significantly affect decisions surrounding child custody, spousal support (or “alimony”), and property division (i.e., division of assets).

How Domestic Violence Affects Child Custody in California

When making decisions about the legal and physical custody of a divorcing couple’s minor children, family courts in California will look to the best interests of the child(ren). It goes without saying that it is usually not in a child’s best interest to live in a household where domestic violence or abuse is prevalent. However, California family law also places a premium on a child’s ability to have both ongoing and frequent contact with both parents after the divorce proceedings officially conclude.

Section 3044 of the California Family Code creates a presumption against granting custody of the couple’s minor child or children to a spouse who committed one or more acts of domestic violence within the last five years. However, this presumption is a rebuttable one, and judges may consider all of the following:

  • Evidence that although a parent may have committed an act of abuse in the past, they have successfully completed all required counseling programs, education, or treatment
  • That awarding physical custody of the child to the abusive parent is in the best interests of the child
  • Whether the parent committed any other prior acts of domestic abuse or violence
  • Whether the parent violated a prior restraining order issued by the court

How Can Domestic Violence Affect Spousal Support?

Domestic violence in a marital relationship may also affect payment of spousal support after the divorce proceedings conclude. A spouse who survives an incident of domestic violence within the preceding five years will not likely have to pay support to the spouse who initiated the violence. In fact, with respect to a misdemeanor domestic violence conviction, a rebuttable presumption exists that payment of spousal support to the perpetrating spouse is prohibited. Similarly, with a felony conviction for domestic violence, the convicted spouse is prohibited from receiving an award for spousal support.

How Can Domestic Violence Affect Property Division?

When a couple acquires property over the course of their marriage in California, that property is known as “community property,” and each spouse owns one-half. In a divorce case that involves domestic violence, a family court judge will review all of the circumstances and decide whether the abused spouse is entitled to recover a higher share of the couple’s designated community property than they will be eligible to receive under normal circumstances.

How Long Does a Domestic Violence Divorce Take?

In most situations, divorce proceedings in California take a minimum of six months. However, the more issues the parties agree on, especially with regard to child custody and support payments, the shorter the process may take.

What Is Domestic Violence?

Pure and simple, domestic violence in California is abuse. Abuse may come in several different forms, including:

  • Harassment
  • Stalking
  • Sexual assault
  • Physical abuse
  • Emotional abuse
  • Threats or intimidation
  • Restriction of movement
  • Deprivation of basic necessities, such as food or water

There Are Two Main Domestic Violence Crimes in California

In California, there are two over-arching categories of domestic violence crimes:

  • Domestic battery – Domestic battery occurs when a person inflicts some degree of force and violence on a partner, even in cases where there are no visible injuries. If a person ultimately sustains a criminal conviction for domestic battery, they may receive a maximum criminal sentence of one year in jail or a $2,000 monetary fine.
  • Corporal injury to a spouse or cohabitant – Corporal injury to a spouse or cohabitant occurs when an abused partner suffers one or more visible injuries at the perpetrator’s hands. A state prosecutor may charge this crime as either a felony or a misdemeanor. Upon conviction, the accused can receive a maximum of four years in jail.

How Do I Ask for a Domestic Violence Restraining Order?

If you believe you are a victim of domestic violence, you or your lawyer can petition the court for a Domestic Violence Restraining Order. The judge will listen to your testimony and review all of the evidence when deciding whether or not to issue a restraining order in the case. Pursuant to the order’s terms, an abusive spouse may be unable to contact you by any means – either in-person or electronically.

Proof of Domestic Violence in a California Divorce

Unfortunately, domestic violence among spouses continues to be a serious problem in California, pursuant to recent statistics from the National Coalition Against Domestic Violence (NCADV). In fact, according to those statistics, approximately 1 out of every 3 women – and 1 out of every 4 men – have been the victim of physical violence by an intimate partner at some point in their life. Specifically, in California, 23.7 percent of men and 32.9 percent of women experience domestic violence in their life.

Get Legal Help from a California Divorce Lawyer Involving Domestic Violence

If you are seeking to obtain a divorce because of domestic violence in your marriage, you are not alone. A knowledgeable and compassionate California divorce lawyer in your area can meet with you to discuss your situation and explore legal options you may have. Your attorney can also assist you throughout every step of the divorce proceedings and aggressively represent you at all court hearings in your case.