California is a no-fault state when it comes to divorce. This means the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong. However, there are certain areas of divorce where fault is actually a factor. Past domestic violence does have an effect on whether a court will award spousal support to the perpetrating spouse.
Under California law, in a divorce case where a spouse has been convicted of an act of domestic violence against the other spouse within five years prior to the divorce, there is a “rebuttable presumption” that the convicted spouse should not receive a spousal support award. The word “rebuttable” does not mean that the convicted spouse will automatically not receive any spousal support. It means that the convicted spouse may present evidence to show why the presumption should not be followed and why spousal support should in fact be awarded.
In order to rebut the presumption, the court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence, perpetrated by the other spouse. The court may also consider any other factors it deems “just and equitable.” This presumption must be overcome by a preponderance of the evidence (or it is more likely than not that the other spouse also committed domestic violence or any other factors the court decides to hear.)
California Spousal Support
Since the court has discretion to hear rebuttal factors that it finds to be “just and equitable,” there are several arguments to be made for the judge to not follow the presumption and to award spousal support. This includes pointing out the length of the marriage, any batterer’s intervention or anger management courses that may have been completed, or any punishment or time served for a conviction.
Even if there hasn’t been a criminal conviction of domestic violence in the past, domestic violence can still be a factor that is considered by the court. The spouse opposing the award of support may produce documented evidence of any history of domestic violence, such as police reports, incident report, or past threats. They may also show evidence of the emotional distress resulting from the violence. In the case where there is no conviction, the requesting spouse may still present the same evidence listed above as rebuttal factors.
The reasoning behind this presumption is to avoid victims of domestic violence from financing their own abuser’s standard of living after divorce. If you have a case that involves domestic violence, whether you are the actual victim or you are being falsely accused, contact an attorney at Cage & Miles, LLP and we will meet with you to review the sensitive details of your case.
