How Can Domestic Violence Affect Spousal Support?
Victims of domestic violence are not required to finance their own abuse under California law. The law states that during divorce proceedings where there is a criminal conviction for any act of domestic violence committed by one spouse against the other within five years of the filing for divorce, there is a rebuttable presumption that the abusive spouse should bear the burden of providing temporary or permanent spousal support.
For example, a California case from 2006 involved a spouse who was required to forfeit her spousal support payments she was receiving of over $5,000 per month because she had committed and was criminally convicted of domestic violence against her former husband. In that case, the ex-wife was receiving the payments following their divorce and the ex-husband had moved to Florida with his new significant other. The ex-wife flew to Florida and committed several acts of vandalism and harassment, including killing his pet fish and spraying herbicide on the ex-husband’s girlfriend’s face.
As a result of this behavior and further violations of protective orders, the California courts determined that the ex-wife’s behavior warranted a permanent termination of receiving the benefits of spousal support. This case is important, because it highlights that domestic violence may come from the spouse or former spouse who prevails in a divorce action.
If you are in the process of obtaining a dissolution of marriage, or your divorce has been finalized, and spousal support has been awarded, acts of domestic violence can have serious consequences on that spousal support. It is important to note that this law is not applicable only to persons receiving payments. Spousal support may be temporarily or permanently increased to pay for the additional costs resulting from domestic violence, such as, counseling, medical bills, and lost wages.
Contact our San Bernardino domestic violence attorneys at 909.315.4588 for a case evaluation!
How Can Domestic Violence Affect Child Custody?
Child custody may be awarded as joint, shared, or sole custody and be defined as legal or physical. Legal custody preserves a parent’s right to make major life decisions for a child, whereas physical custody determines where the child primarily resides and which parent will provide basic care for the child. The court makes all child custody determinations in the best interest of the child, not the parents.
The California Legislature works to fight for the best interests of children in custody cases. This includes protecting children from exposure to abuse or violence in the home.
“The best interests of a child” require judges to determine what environment will best promote health, welfare, and safety. Your custody case will be considered a domestic violence case if a parent committed domestic violence against the children or other parent within the last five years. If a prior conviction / court determination is not present in your case, the judge will examine all of the evidence to determine if the case is a domestic violence case. The judge cannot reach a decision based solely off of the conclusions or recommendations of Family Court Services staff or a child custody evaluator; he or she must also look at prior patterns of abuse. Any such evidence creates a “rebuttable presumption;” meaning the parent will be denied custody unless he / she is able to prove the presumption is wrong.
How Does Domestic Violence Affect Visitation Rights?
When dealing with the rights of minor children, judges are required to examine a case, looking at the facts and making determinations that are in the best interest of the children. If a parent is abusive and has visitation rights, the court may take any necessary steps to ensure that the children are protected. The judge may do this by ordering supervised visitation or prohibiting any overnight visits.
What Community Resources Are Available for Victims?
California has dedicated a large amount of resources and funding to the development of organizations and programs designed to help victims of domestic violence.
The California Partnership to End Domestic Violence is a database with an alphabetical listing of domestic violence hotlines and nonprofit organizations. There are also a great number of nonprofit groups that operate throughout the state, providing help, shelter and counseling to victims of domestic violence. In Victorville, Better Way is a great community resource for domestic violence victims in Riverside and San Bernardino counties. Additionally, there is a 24-hour helpline called the National Domestic Violence Hotline at (800) 799-7233. This service is available every day of the year.
What Is a Domestic Violence Restraining Order (DVRO)?
A DVRO is a court order, signed by a civil court judge, instructing an abuser to stop all abuse or face serious legal repercussions. The order gives the victim certain legal protections from domestic violence.
There are three types of domestic violence restraining orders:
- Emergency Protective Orders
- Temporary (ex parte) Restraining Orders
- Restraining Order After Hearing
A DVRO has the power of a comprehensive effect and can help in the following ways:
- Order an abuser to cease any abuse and contact and to stay a certain distance away from the victim
- Provide the victim with custody of animals in the home
- Order an abuser to cease living in the same home of the victim(s)
- Prohibit an abuser from of possessing or purchasing any firearms / ammunition
- Order an abuser to provide child support / spousal support
- Provide temporary possession of personal or real property that are jointly owned
- Order an abuser to pay any financial obligations associated with jointly shared property
- Require an abuser to pay an outstanding expenses, such as, lost wages, medical or dental bills, shelter and lodging costs, counseling, and / or legal fees that are a result of the abuse
- Require an abuser to attend a batterer’s treatment program, substance and alcohol abuse program, or any other counseling service depending on the circumstances
While restraining orders can impose a wide net of prohibitions and restraints, there are a few limitations. A restraining order cannot dissolve a marriage; the divorce process is separate and lengthy. In addition, restraining order cannot establish the paternity of minor children, unless the restrained person and victim agree to paternity and agree to allow the court to enter a judgment regarding paternity.
Helpful Tips for Dealing with Domestic Violence During a Divorce
During divorce, the probability of domestic violence is higher. Emotions run high and the couple may feel they are at “war” with each other. This is especially true in a contested divorce where the parties are not in agreement and must battle the issue in court. If you or any member of your family is a victim of domestic violence, be sure to contact a San Bernardino lawyer from our firm right away.
Below are five helpful tips that you should follow if you or someone your love find themselves in this situation:
- Don’t hesitate to call the police and don’t wait till things turn physical. Even threats of physical harm that instill fear can be categorized as domestic violence.
- Have your abusive spouse psychologically evaluated. They could have serious mental health problems that could be eliciting the violent behavior. With a psychological evaluation you may also be able to find where their abusive tendencies stem from. For example, your spouse could have been abused or neglected as a child.
- Seek to schedule a child custody evaluation so that the court can ensure that the children are safe and are not in imminent danger with the current child custody arrangement. In cases where the children are not the direct victims, they are still indirect victims and should not be living in a violent atmosphere.
- Rather than family counseling, first complete separate counseling sessions. In joint counseling it is easy for the abuser to blame the victims and shift the blame, so it is important to hear both sides separately without the influence of the other.
- Never be afraid to speak up! If you or your children have to endure abuse, never hesitate to seek out help from a third party. It is dangerous to let domestic abuse go unreported. Just remember your life and the lives of your children are at risk.
