Divorce can be a challenging and emotionally charged process to begin with. When domestic violence is involved, this deeply troubling issue can have significant implications on divorce proceedings. The California Legislature recognizes the serious impact of domestic violence on individuals and families and it provides protections for individuals facing domestic violence during divorce proceedings. This blog post aims to shed light on domestic violence restraining orders and how domestic violence affects divorce proceedings in California, including its influence on child custody, property division, and support orders.
What Constitutes Domestic Violence?
Under California Family Code section 6203, abuse is not limited to the infliction of physical injury and includes: (1) intentionally or recklessly causing or attempting to cause bodily injury, (2) sexual assault, (3) placing someone in reasonable fear of impending serious bodily injury to themselves or another person (4) engaging in behavior that is set forth in section 6320, including, but not limited to, that isolates someone from family, friends, or other support systems, controlling someones finances, access to medical or psychiatric care, or daily whereabouts, threatening or intimidating someone.
Eligibility For and Obtaining a Domestic Violence Restraining Order (DVRO)
When domestic violence occurs within a marriage and/or occurs during divorce proceedings, it is important to prioritize the safety and well-being of the victim and any children involved. A DVRO provides legal protection by prohibiting the abusive spouse from engaging in further acts of violence or harassment during the divorce proceedings. A court is authorized under California Family Code section 6300, to issue a restraining order to prevent the recurrence of domestic violence.
A DVRO is granted to:
(1) any person that domestic violence has been perpetrated against.
Domestic violence is abuse perpetrated against someone who has or had a close relationship with the abusive spouse, (e.g., a current or former spouse, a current or former boyfriend or girlfriend, a current or former fiancee, domestic partner, current or former cohabitant, or parent of shared child). Fam. Code section 6211.
(2) Who has evidence of past or present incidents of domestic violence. Fam. Code section 6300.
Requesting a DVRO involves filing paperwork detailing incidents of abuse, requesting and attending a hearing to present your case before a judge, and evaluation by the judge to determine whether the evidence presented is sufficient to grant a restraining order.
Ways A DVRO Protects The Victim
A domestic violence restraining order may include various provisions, to protect the victim such as: orders for the abuser to stay away from the victim’s house, workplace, or children’s school, prohibition on contacting the victim directly or indirectly, child custody and visitation arrangements to ensure the safety and wellbeing of the children involved, orders for the abuser to surrender firearms and other dangerous weapons.
How Domestic Violence Affects The Outcome of Divorce Proceedings
Child Custody and Visitation
Domestic violence is a crucial factor considered in child custody determinations in California. The court's primary concern is the best interests of the child. If domestic violence has occurred, the court may prioritize the safety and well-being of the child by limiting or supervising visitation, awarding sole custody to the non-abusive parent, or requiring supervised exchanges to minimize potential harm. Fam. Code section 3044.
Property Division and Spousal Support
Under California Family Code section 4334.5, where there has been a criminal conviction for a violent sexual felony or felony domestic violence or under California Family Code section 4325, where there has been a criminal conviction for a domestic violence misdemeanor:
The abuser spouse is not allowed to request spousal support from the victim spouse.
A court may order that attorneys fees are not to be paid out of the victims separate property.
It is possible for the date of separation to be the date of the incident that resulted in the felony conviction.
It is possible for the court to award 100% of the community property interest in the victim spouse’s retirement and pension to the victim spouse
You Are Not Alone
Domestic violence has a profound impact on divorce proceedings in California, affecting child custody determinations, property division, spousal support orders, and overall legal protections. The court's priority is to ensure the safety and well-being of victims and their children. Seeking assistance from local authorities, utilizing available resources, and seeking legal advice from an experienced family law attorney can help navigate the complexities of divorce in the presence of domestic violence. By taking decisive action, victims of domestic violence can create a more secure environment and pave the way for a healthier future.
At Harris & McKeown, our team of Certified Family Law Specialists recognize the added complexity that domestic violence adds to a dissolution proceeding and understands the importance of assisting victims in regaining control of their lives. Our experienced family law attorneys have been assisting clients throughout Southern California for over 10 years.
If you or someone you know is facing domestic violence while in the process of divorce and would like to discuss what resources are available to help navigate through these difficult times, schedule an appointment online or by calling (949) 297-6529. Remember, support is available, and no one should endure domestic violence in silence.
THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
EVERY CASE IS DIFFERENT AND THIS GUIDE SHOULD NOT BE CONSTRUED AS
LEGAL ADVICE. THIS ARTICLE DOES NOT CREATE AN ATTORNEY CLIENT
RELATIONSHIP BETWEEN THE READER AND ITS AUTHOR. IF YOU HAVE LEGAL QUESTIONS, CONSULT WITH A FAMILY LAW ATTORNEY.