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Domestic violence and restraining orders can complicate California divorce proceedings, affecting everything in your San Francisco domestic violence case from spousal support to child custody and property division.
California is a no-fault divorce state. Generally, it doesn’t matter why you’re divorcing, only that you and your spouse are experiencing “irreconcilable differences.” However, domestic violence is the exception to this rule and will come into play as a factor in divorce proceedings.
In fact, California courts will refuse to grant alimony or spousal support to domestic abusers. In addition, judges will decide custody matters in a child’s best interests, ruling against the abusive spouse to avoid exposing children to violence at home.
If you’ve been accused of abuse or you’ve experienced abuse at the hands of a domestic partner, that will affect the process and outcome of your divorce. An experienced and knowledgeable San Francisco domestic violence attorney can help you navigate this difficult time.
In California, abuse is broadly defined and includes:
To prove domestic abuse, the victim can present:
The burden of proof for demonstrating domestic violence is much lower in divorce cases compared to criminal cases. So a family court judge could base their decision on a domestic partner’s abusive behavior even if they were never convicted of a crime for their actions.
Unfortunately, false accusations of domestic violence may also become an issue if one spouse is willing to take drastic measures to hurt the other or gain the upper hand in the divorce.
If a spouse is falsely accused of domestic violence and even has a criminal conviction based on those accusations, that criminal record can damage their divorce case. However, they can also present evidence to prove the allegations wrong or show that they were actually the victim. Call a San Francisco domestic abuse attorney for a case consultation.
Restraining orders past and current can be brought to the attention of the court in your divorce proceedings as evidence of domestic violence in your relationship. That evidence can ultimately affect whether you get spousal support, child custody, or equal division of assets.
In addition, restraining orders can also change the actual process of your divorce.
If either spouse has an active restraining order against the other, the terms of that protective order can affect your divorce proceedings. For example:
Any contact, stalking, or threatening behavior can violate the restraining order and result in arrest, whether the contact is in person or through email, social media, calls, or texts. Indirect contact through family members or other third parties is also prohibited.
Under California law, a divorce automatically comes with certain “Standard Family Law Restraining Orders” as detailed in your Summons filing (California Form FL-110). These restraints apply to the filing spouse as soon as they file the divorce and to the non-filing spouse as soon as they receive notice of the divorce proceedings.
Under the standard restraining orders in all California divorces, neither spouse may do the following without a court order or the other spouse’s consent:
These automatic restrictions apply to both spouses even without a restraining order already in place. Violating these rules could result in serious consequences for you in your divorce.
Spousal support and alimony payments help both spouses continue their quality of life after divorce. This is especially true in cases where one spouse makes significantly more than the other or delayed their own career to care for the home while the other works.
However, California courts try to avoid making victims of domestic abuse pay alimony or spousal support to an abusive spouse, no matter their financial situation. In the last 5 years:
A rebuttable presumption gives the party convicted of abuse’s domestic violence lawyer the chance to argue why they should receive spousal support despite their domestic violence record. They can present:
Still, the law’s bias against giving alimony to a convicted abuser is strong. Depending on the facts of the domestic violence conviction, the presumption can be difficult to overcome. This rule applies to both temporary and permanent spousal support.
When California family courts decide child custody, they base their determination on the best interests of the child. A record of abuse goes against a child’s best interests, which means domestic violence issues will affect child custody both during and after a divorce. This is true even if the children haven’t been the subject of abuse.
Similar to spousal support, a domestic violence conviction creates a presumption that the abusive parent or caretaker should not have sole or joint physical custody of the couple’s children. The more severe the conviction, the more difficult it is to argue this point.
To overcome this presumption, a spouse convicted of domestic violence has the burden of convincing the court that it’s in the best interest of the child to have them in their lives. To support this claim, they must demonstrate that they’ve:
If the court isn’t convinced that more abuse won’t occur in the future, the convicted party may lose custody of their children completely or get limited, supervised visitation only.
Generally, “fault” won’t play a role in how property is divided in a California divorce. You would normally keep all your separate property and split the community property assets in half.
However, domestic violence can change that equation. A California court may order a domestic abuser to forfeit their share of the community property or give it to the other spouse if:
Domestic violence is a serious issue and an unfortunate reality for many couples in California. Intimate partner violence can strike even in the highest echelons of industry and business leadership. False accusations can derail family life and even the most promising careers. A divorce can get much more complicated when restraining orders get involved.
Although California is a “no-fault” divorce state, proof of domestic violence can affect child custody, spousal support, and property division for splitting spouses. If your divorce includes allegations of domestic violence or abuse, you need to prepare for what that means for your family moving forward. Our San Francisco Bay Area domestic violence lawyers can help. Call our San Francisco offices at (415) 625-4587 or contact us online to talk to our skilled family law lawyers in San Francisco today about your case.
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