Proving Domestic Violence in a Divorce Case


Reports of domestic violence have been on the rise in 2020, and advocates guess this is because of shelter-in-place and quarantine orders that essentially trap a spouse in a home with an abuser. If you have been the victim of domestic violence and believe your safety – or the safety of your children – is at risk, you should speak with a family lawyer who can help you obtain the necessary orders of protection. You then might want to discuss the next steps to file for divorce, as well as how you might prove domestic violence as part of your divorce case.

How Domestic Violence Might Impact a Divorce

California is a no-fault divorce state without any fault-based options. This means that even if you are filing for divorce due to domestic abuse, you still must cite irreconcilable differences as the grounds for your divorce. This does not require you to prove any misconduct on the part of your spouse to end your marriage. However, in many cases, domestic violence can play an important role in resolving various issues in your divorce, such as:

  • Child custody
  • Spousal support
  • Community property division

Child Custody

If your spouse is causing you harm or threatening to cause harm, it is only natural that you are concerned about the safety of your children if your spouse will share child custody. However, not every instance of domestic violence will necessarily prevent your spouse from getting custody or visitation rights.

For example, if the domestic abuse happened more than five years ago, it is unlikely to impact a child custody decision. If there is specific proof that domestic violence happened in your household within the last five years, the judge must consider special factors in order to grant custody rights to the abuser. This includes examining whether the parent completed parenting classes, a batterer intervention program, and other requirements by the court. Proving domestic violence within five years is essential if you are trying to protect your child from having to live with the risk of ongoing abuse.

Spousal Support

In 2019, new laws went into effect in California regarding how domestic violence might impact spousal support determinations. Specifically, the law seeks to avoid having a domestic violence victim pay support to an abuser. If someone can prove a felony offense of domestic violence, the offender will be banned from receiving spousal support, regardless of their financial situation. If the domestic violence offense was a misdemeanor, there is a rebuttable presumption against an award of spousal support for the offender.

Being able to prove domestic violence in this situation can save you the financial and emotional hardship of having to continue to provide support to an abuser after the divorce is final. This is an important issue to address in any divorce case involving domestic violence.

Division of Community Property

In equitable distribution states, the division of property aims to be “fair,” so judges can consider different factors – such as fault for the divorce – when determining how to divide property, assets, and debts. However, California is a community property state that aims to divide all community property as close to 50/50 as possible. Fault for the divorce is generally not considered in this determination.

There are situations in which domestic abuse might impact community property division, though. These include:

  • Certain debts stem directly from harm caused and medical treatment needed due to injuries from domestic violence. In this case, the court might order the abuser fully responsible for those debts.
  • The domestic violence victim was unable to work regularly due to domestic violence or threats from a spouse.
  • The domestic abuser tried to hide assets from the victim in an effort to exercise control over the victim and restrict their activities.

While less common, domestic violence can affect property division in some divorce cases.

Ways of Proving Domestic Violence

Like any type of legal matter, the court will generally not simply accept your word as proof of what took place during your marriage. Instead, you will be expected to present sufficient evidence to the court to show that domestic violence took place in your divorce case.

The most persuasive type of evidence is a criminal conviction for domestic violence offenses. The criminal justice system has the highest burden of proof of any type of legal case in the United States, as charges must be proven beyond a reasonable doubt. If your spouse was convicted of a crime related to domestic violence, the family court can use that conviction as sufficient proof that the domestic violence occurred. For this reason – and more – it is always critical to report incidences of domestic violence to law enforcement who can decide whether to pursue a criminal case.

Even if there is no criminal conviction that resulted, there are still ways that a judge can determine that domestic violence occurred, specifically by issuing an order of protection. Orders of protection are not always easy to obtain. In order to get an extended order, your domestic abuser has the right to defend against the order in court. These hearings can be contentious, and it is up to the judge to decide whether the abuse occurred and whether there is an ongoing risk to warrant a protective order. A judge finding that an order is necessary can be used as proof that domestic violence happened in your marriage.

If you do not have a protective order and no criminal conviction took place, you still might be able to provide enough evidence of domestic violence to impact your divorce outcome. This might involve:

  • Medical diagnoses and records of injuries you sustained
  • Photos of injuries
  • Witness testimony

It is critical to have the guidance of an experienced divorce lawyer who can advise you of how domestic violence might affect your divorce. Divorce can be a difficult process when you are facing off against an abuser, and you want the right representation from a law firm that will protect your interests, as well as those of your children.

It is important to know that the burden of proof in a domestic order restraining order case is significantly lower than the burden of proof than for criminal domestic violence convictions. Criminal charges must be proven beyond a reasonable doubt (the highest legal burden of proof), while domestic violence for restraining orders only must be proven by a preponderance of the evidence, which means the judge believes it is more likely than not that domestic violence happened. If it is your word against your spouse’s, the judge might base their decision on which testimony they find more credible without any other evidence at all.