Are you the victim of domestic violence? Have you ever – or do you now – have reason to fear your spouse? If so, you are not alone. In fact, there are more than 100,000 domestic violence-related calls to law enforcement every year. In this blog, we will touch on some of the issues where domestic violence and your divorce intersect.
Acts of Domestic Violence
When we think of this, we often think of physical damage one spouse inflicts on another. However, the law defines domestic abuse as:
- Physically hurting or trying to hurt someone, intentionally or recklessly;
- Sexual assault;
- Making someone reasonably afraid that they or someone else are about to be seriously hurt; OR
- Harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
Domestic violence in a marriage also affects the dissolution of that marriage.
Domestic Violence Affects Child Custody Arrangements
When children are involved, the focus in a California divorce is on doing what is in the best interests of the children.
Judges always take domestic violence into account when deciding child custody arrangements. The safety of the child and other family members is critical. Courts will review evidence that backs up domestic violence accusations.
If allegations of domestic violence arise in a divorce matter, the court will assume that the abusing parent should not have custody. This is called a “rebuttable presumption” because the accused party can present evidence overcoming the assumption they are not qualified to care for the children.
Visitation may also come into play when domestic violence is an issue. Protective orders and restraining orders may be necessary. In some cases, the court may allow only supervised visitation to ensure the children’s safety.
Domestic Violence May Affect Your Spousal Support and Property Division
This issue is a little more of a gray area. The problem is that either party could have committed the acts of domestic violence. Sometimes both parties have crossed that line.
The court examines allegations of domestic violence. Criminal convictions of domestic violence set up a rebuttal presumption situation. Generally, unless proven otherwise, the injured spouse is not required to pay spousal support to the convicted spouse. The convicted spouse has the opportunity to successfully rebut the conviction and change the judge’s mind.
However, allegations and convictions of domestic violence are taken seriously by the courts. They may have a profound effect on your divorce – you may become ineligible to receive support if you have committed violent acts.
In addition, the courts may give up to 100% of the community property interests in retirement and pension benefits to an injured spouse. Here again, the court will consider other factors before making a decision.
Domestic violence has a huge impact on a couple’s relationship. It’s only natural that it would also affect their divorce.
To discuss how to handle domestic violence and your divorce, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
If you or your children are in danger, call 911. You may also find local domestic violence organizations here or call the National Domestic Violence Hotline at 1-800-799-SAFE (7233).