Domestic violence includes harm or threatened harm against a family or household member, including a current spouse. The harm is not only physical; it can also be mental, verbal, emotional, or sexual. Instances of domestic violence can affect how matters are resolved in a California divorce. For example, a judge may deny the perpetrator child custody or spousal support. Still, the individual accused of abuse may present their own evidence to attempt to seek a more favorable outcome on their behalf.
What Is Domestic Violence?
A person may be accused of domestic violence if they are alleged to have abused or attempted to abuse someone with whom they are in a close relationship.
Close relationships include those involving:
- Former spouses
- Dating partners
Abuse can take many forms, such as:
- Bodily injury
- Sexual assault
- Reasonable fear of harm
- Destruction of property
If a couple is divorcing and allegations exist that one spouse committed domestic abuse against the other or their children, or one spouse has been convicted of such conduct, this can have serious implications on how the divorce is resolved.
What Parts of Divorce Proceedings Can Domestic Violence Impact?
Divorces are very sensitive and complex. Judges must resolve them in ways that are fair for both parties. However, in situations where one spouse has committed domestic violence, the judge may favor the abused party.
The aspects of a divorce that may be affected by domestic violence include the following:
- Negotiations between spouses: In many cases, judges encourage couples to work together to settle divorce-related issues. The cooperation enables the parties to resolve things in ways that account for their unique circumstances. It also allows for a more efficient and less costly divorce, as things can be settled outside the courtroom.
However, negotiations and agreements may not be possible in matters involving domestic violence. One party may have gotten a restraining order against the other, preventing contact between the two. Although negotiations may still be possible through lawyers, a no-contact order can present hurdles.
- Spousal support: In cases where a spouse has been convicted of misdemeanor or felony domestic violence within 5 years of the request for a dissolution, there is a presumption that the perpetrating spouse may not receive spousal support. The spouse may seek to overcome the presumption by presenting evidence that they were a victim of domestic violence at the hands of the other spouse.
- Retirement and pension division: The court may award the injured spouse 100% of the community property interest of their own retirement and pension benefits rather than making a 50/50 split.
- Child custody: When awarding child custody, courts do what is in the child's best interests. If domestic violence occurred during the marriage within 5 years before the divorce petition was filed, the court might deny the perpetrating spouse custody to protect the child’s safety.
The perpetrating spouse may attempt to overcome the presumption by demonstrating that they:
- Have not committed any other acts of domestic violence,
- Completed a batterer’s treatment program,
- Completed drug or alcohol abuse classes,
- Completed parenting classes,
- Complied with the terms of probation or parole, and/or
- Complied with restraining order conditions.
- Visitation: The perpetrating spouse’s ability to visit their children may be limited. A judge may allow them only supervised visits to protect the child. They may also deny visitation altogether if they believe that allowing the parent contact would jeopardize the child’s physical or emotional well-being.
Contact an Attorney About Your Case
Protecting the safety and best interests of you and your children is extremely important. If you’re divorcing someone who has committed domestic violence, a family law lawyer can assist in pursuing favorable resolutions on your behalf.
Our San Diego team at Claery & Hammond, LLP handles divorce matters with sensitivity and care. We take the well-being of our clients’ seriously and present compelling arguments to seek just outcomes for child custody and visitation, property division, and spousal support issues.
To schedule a consultation with us, please call (619) 567-6704 or submit an online contact form today.