How Does Domestic Violence Factor Into A Divorce In California?

Domestic violence laws in California seek to hold those accountable who often commit crimes behind closed doors against people they know. Marriage is just one of many types of home-sharing relationships that are covered by domestic violence laws.

The types of crimes that are punished under the statute are considered abuses committed by one spouse against the other. When married partners divorce, whether or not there has been domestic violence in the relationship will determine or strongly influence decisions affecting child custody, support payments, and property division.

Domestic violence in a marital relationship that is ending is of concern for a number of reasons, the biggest of which is the future safety of the abused spouse and the rest of the immediate family. 

What is Domestic Violence?

Domestic violence is abuse, and abuse is defined as the following kinds of actions by one marital partner toward another.

• Intentional or reckless conduct that causes or almost causes bodily injury
• Threatening imminent serious bodily injury to the spouse or another

California interprets its statute broadly and has considered the following to be types of domestic violence.

• Physical abuse
• Emotional abuse
• Sexual assault
• Harassment/stalking
• Intimidation/threats
• Isolation by restricting movement/communication
• Deprivation of basic necessities
• Limiting access to financial resources

In September 2020, Governor Newsom extended the reach of domestic violence laws in California to include ‘coercive control’ by one spouse over another. Coercive control is a pattern of behavior by one partner that unreasonably interferes with the other’s free will and personal liberty. 

Is Domestic Violence Grounds for Divorce in California?

California is what is known as a no-fault divorce state. What that means is that a person wanting to get a divorce does not have to go into all of the sordid details as to why divorce is being filed. The party seeking a divorce must only indicate that the dissolution of marriage is being sought due to irreconcilable differences, which have caused the irremediable breakdown of the marriage.  

In fact, California law says that it does not want to hear about specific acts of misconduct that led to the divorce unless they are relevant to the proceedings. Misconduct that is domestic violence is an exception. Evidence of domestic violence is always relevant to the proceedings. 

If the person filing for divorce is also seeking protection from their spouse, a Domestic Violence Restraining Order can be requested, which will require that the details of the abuse be disclosed so that the court can determine whether or not to grant the restraining order. 

How Does Domestic Violence Affect Divorce Proceedings?

Evidence of domestic violence can have a substantial impact on the outcome of divorce proceedings. Family court judges are given the authority to decide certain issues in favor of an abused spouse when there has been domestic violence in a marriage. But the abusive spouse is allowed to present evidence to try and change the judge’s mind. 

Child Custody

When determining child custody in a divorce, California prioritizes the best interests of the child. The law specifically says that placing a child in a living situation where there is domestic violence is not in a child’s best interests. But the law also prioritizes children having frequent and ongoing contact with both parents after a divorce. 

California Family Code section 3044 creates a rebuttable presumption against awarding child custody to anyone who the court finds committed domestic violence within the previous five years. 

To overcome the presumption, a judge will consider the following factors:

• Evidence that the best interests of the child are served by awarding custody to the abusive parent
• Evidence that the abusive parent has successfully completed treatment, education, or counseling programs 
• Whether the abusive parent successfully completed the required probation or parole periods
• Whether the abusive parent has violated a restraining order
• Whether there are any other incidents of domestic violence

Support Payments 

One of the many factors to be considered when ordering spousal support payments is all documented evidence of domestic violence. A conviction for domestic violence within the previous five years makes it very unlikely that a spouse who survived domestic violence will have to make support payments to the perpetrating spouse. 

• Domestic violence misdemeanor conviction – There is a rebuttable presumption that support payments to the convicted spouse are prohibited.
• Domestic violence felony conviction – An award of spousal support to the convicted spouse is prohibited.

Property Division

In California, property that is acquired during a marriage is community property, and each spouse owns one-half. In divorces where there has been domestic violence, the judge may consider the circumstances and determine that an abused spouse is entitled to a greater share of the community property than would otherwise be awarded. 

Proof of Domestic Violence in a California Divorce

Statistics compiled by the National Coalition Against Domestic Violence (NCADV) show the following:

• Almost 20 people every minute are physically abused by an intimate partner in the US.
• 1 in 3 women and 1 in 4 men have experienced physical violence by an intimate partner.
• 15% of all violent crimes committed are between intimate partners.
• Intimate partner violence causes a loss of over 8 million paid days of work each year.
• The costs associated with intimate partner violence exceed $8.3 billion annually.

In California, 32.9% of the women and 23.7% of the men experience domestic violence. Domestic violence may be happening in a marriage – and may, in fact, be the reason for seeking a divorce – without there being a criminal conviction or charges filed against the offending spouse. 

Judges are to consider any and all evidence of domestic violence when ruling on a divorce or determining whether to issue a restraining order. Evidence of significant limitations on freedom or other controlling behaviors can be considered domestic violence. The standard of proof for domestic violence in a divorce proceeding is not as difficult to meet as it is in criminal proceedings. 

Get Legal Help for a California Divorce Involving Domestic Violence

Domestic violence complicates the already unpleasant breakup of a family. It can affect the decisions in divorce about child custody, support payments, and how property gets divided. 

Domestic violence is taken seriously, and evidence of domestic violence – as well as any evidence rebutting the presumptions associated with domestic violence – will be scrutinized carefully by a judge so that the best possible result can be reached. 

At Pedrick Law Group, APC, our Orange County divorce attorney represents clients in divorce proceedings where there has been domestic violence in the marriage. Attorney Gregory J. Pedick has been practicing family law in the Los Angeles area for almost three decades. Let us know how we can help. Send us your contact information here. Or call us in Orange County at 949-438-3886 or in Encino at 818-423-4078 to schedule a free case evaluation.