Domestic Violence and Restraining Orders in California Divorce
Domestic violence and restraining orders can complicate California divorce proceedings, affecting everything in your 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 California divorce attorney can help you navigate this difficult time.
What Is Considered Domestic Abuse in California Divorce?
In California, abuse is broadly defined and includes:
- Physical assault, sexual assault, or emotional abuse
- Stalking, harassment, threats, or intimidation
- Isolation or deprivation or basic necessities
- Excessive monitoring or control of economic resources
To prove domestic abuse, the victim can present:
- A domestic violence criminal conviction in the past 5 years (misdemeanor or felony)
- Photos, records, and medical diagnoses of injuries sustained in the abuse
- Restraining or protective orders filed for abusive behavior
- “No contest” pleas in response to domestic violence charges
- Verbal or written threats or restraining order violations
- Corroborative testimony from witnesses
- Evidence of stalking, harassment, or intimidation
- Documentation from law enforcement or child protective services
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.
How Do Restraining Orders Work in California Divorce?
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:
- If the restraining order requires spouses to stay a certain distance away from each other, you may not be able to meet to negotiate or mediate your issues.
- Normally both spouses have the right to remain in the family home during the divorce, but the spouse accused of domestic abuse may be ordered to leave by the judge.
- An abusive spouse may be barred from seeing their children without supervision during the divorce process, even before custody is finalized by the court.
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.
California’s Automatic Temporary Restraining Orders (ATROs)
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:
- Filing passport applications for your children
- Moving your minor children out of state
- Cashing, canceling, transferring, leveraging, or changing the terms of any insurance policy benefiting your spouse or your children
- Selling, leveraging, gifting, or hiding any personal or real estate property unless “in the usual course of business or for the necessities of life”
- Creating or changing a non-probate transfer such as a revocable trust
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.
How Does Domestic Violence Affect Spousal Support?
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 worked.
However, California courts try to avoid making victims of abuse pay alimony or spousal support to an abusive spouse, no matter their financial situation. In the last 5 years:
- If a spouse has a felony domestic violence conviction, then they will automatically be banned from receiving any alimony or spousal support.
- If a spouse has a misdemeanor domestic violence conviction, then California law carries a rebuttable presumption against giving them any spousal support.
A rebuttable presumption gives the party convicted of abuse the chance to argue why they should receive spousal support despite their domestic violence record. They can present:
- Evidence of abuse that went both ways so that the playing field should be even, or
- Proof that the abuse actually happened the other way around.
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.
How Does Domestic Violence Affect Child Custody?
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:
- Completed all the required alcohol or drug dependency counseling, psychological counseling, and batterer’s intervention programs,
- Attended all parenting classes assigned by the judicial system or child services,
- Complied with all of their probation or parole obligations,
- Followed the terms of any restraining or protective orders filed against them, and
- Avoided any additional domestic violence incidents after their conviction.
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.
How Can Domestic Violence Affect Property Division?
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:
- Their spouse has medical bills or debts resulting from the injuries they suffered in the abuse, in which case the abuser would become responsible for paying
- Their spouse was unable to work or lost their job because of their abuse or threats
- They hid assets from their spouse in order to control or restrict their activities
What Should You Do If Your Divorce Involves Domestic Violence?
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 Bay Area divorce lawyers can help. Call our San Francisco offices at 415.872.1080 to talk to our skilled family lawyers today about your case.