Divorce is never easy, but for families struggling with domestic violence, the transition can be even more complicated—especially for those who have children, need to file a restraining order, or are worried about retaliation.
Each state has different laws for handling domestic violence during divorce. In some jurisdictions, these offenses can warrant the filing of a fault-based divorce, and end up affecting the division of marital property in favor of the abused spouse. They can also impact child custody, alimony, and even result in criminal charges.
Here’s what you need to know about how domestic violence can impact your divorce in California, and what the Maples Family Law team can do to help you navigate this rocky transition.
Overview of Domestic Violence
In California, domestic violence is defined as any abuse—or threat of abuse—that comes from a romantic partner.
Naturally, this definition includes a spouse, but it actually goes further, encompassing any type of romantic relationship, such as someone you’re living with, a domestic partner, a co-parent you share a child with, and even just someone you’re dating (or used to date).
Under this definition, abuse can come in many different forms, and—according to the domestic violence guidelines on the California.gov website—can include things such as:
The act of physically hurting (or trying to hurt) someone, either intentionally or unintentionally;
Making someone think that they (or someone they love) is going to be hurt;
Sexual assault;
Harassment, stalking, threats, and disturbing the peace; and even,
The destruction of personal property.
As you can see, this type of abuse does not require physical contact with another person—or even their property—in order to be considered domestic violence. It can be as subtle as emotional abuse and threats levied against someone you love, and can even include unintentional physical harm.
But, what does this mean when filing for divorce?
Here are some of the ways that domestic violence can impact your divorce, including the division of marital property, child custody, and alimony.
Domestic Violence and Marital Property
At its most basic form, marriage is just a contract; a commitment between two people, who want to be seen as a single entity in the eyes of the law. That’s why several states allow individuals to file for divorce under fault-based grounds.
In a fault-based divorce, the court can assign blame, and hold one spouse financially accountable for their part in the marriage breakup. This is typically done by awarding the victim a larger share of the marital property.
Along with things like infidelity and drug abuse, domestic violence is one of the primary grounds used in these jurisdictions for filing under fault. That being said, California is not one of those states.
As a strictly, no-fault divorce jurisdiction, you cannot file for divorce in California using domestic violence as your grounds. In addition—because judges cannot consider guilt or blame when dividing marital property—you also cannot use domestic violence to receive a greater share of your community pot.
However, that doesn’t mean domestic violence can’t impact your divorce at all…
Domestic Violence and Child Custody
One of the biggest ways domestic violence can shape a California divorce, is in the area of child custody.
In California, custody decisions are made based on what is in a child’s best interest. This legal standard is driven—not by what parents want—but by what will serve a child’s long-term health and welfare the best.
Under these guidelines, sole versus joint custody decisions are determined by weighing factors such as:
Each parent’s ability to care for their child, post-divorce.
Any history or threat of domestic violence.
Any history of drug abuse.
When considering domestic violence, it is not even necessary that the child has experienced the abuse themselves. In California, domestic violence is still a consideration, even if the harm was only ever carried out on the child’s other parent.
Domestic Violence and Alimony
According to the California Family Code, courts are also required to consider domestic violence when making decisions about alimony.
Alimony (or “spousal support”) are regular payments that a judge orders one spouse to pay the other, in order to help support their care after the breakup. This money is often awarded to a homemaking spouse, to help get them back on their feet after so many years out of the workforce.
In California, judges cannot require victims of domestic abuse to pay their spouse alimony, however, this is somewhat contingent on what evidence is available at the time of divorce.
A conviction of domestic violence within the past five years is the strongest type of evidence. If available, this creates a “rebuttable presumption,” which essentially means that the court has to operate as if the abuse exists/existed. As a result, a victim of this violence cannot require to:
Pay temporary or permanent spousal support; or,
Pay their spouse’s attorney’s fees from separate property.
If you don’t have a conviction, you may still be able to get an exemption from alimony. Talk to your attorney about what evidence you may need, and be sure to document any further abuse in as much detail as possible, since the state may want to file criminal charges, as well.
Domestic Violence and Criminal Charges
Domestic violence might have been the reason you decided to file for divorce, but it’s also a crime, and—depending on the severity of the offenses and the available evidence—these actions could be enough to land your spouse with criminal charges.
But what, exactly, does that mean? And how does a criminal charge differ from what you’re doing in divorce court?
Civil vs. Criminal Court
In the United States, there are two main branches of the court system:
Civil court
Criminal court
Criminal court deals with offenses like rape, theft, battery, assault, and so forth. These are harmful crimes committed by one person against another, and can result in fines and even jail time. In a criminal case, the state acts as the prosecutor against the accused.
On the other hand, a civil case is filed by an individual (or business) against another individual (or business). This branch handles pretty much everything that criminal court does not, including real estate transactions, business, contracts, probate, economics, family law, and so forth.
Divorce—like adoption and child custody—is a subset of family law, which means that these cases are generally held in civil court. However, when domestic violence is involved, civil and criminal courts often intersect.
Depending on your situation, the state of California might decide to file criminal charges against your spouse for domestic violence. If they do, these charges will be filed as a separate case, held in criminal court, and handled by a criminal court judge.
Unfortunately, while domestic violence is always a crime, it’s also often a secret crime—one whose harm doesn’t always leave a mark. Hence, in many situations, the state lacks the necessary evidence to prosecute.
California Domestic Violence Resources
It’s important to understand that—even without a bruise or scar—domestic violence is never okay. California courts take these crimes very seriously, and if you or a loved one are currently experiencing abuse, it’s critical that you talk to law enforcement (as well as your family law attorney), to figure out the best course of action in your situation.
If you don’t know where to start, or simply need help, these online resources can assist you with the process:
These sites can help you find a shelter, retain a free or low-cost attorney, and walk you through the steps for things like filing for a restraining order.
In the meantime, if the danger is immediate, don’t wait, and call the police right away.
Domestic Violence Divorce Attorneys in California
If you are dealing with domestic violence in your marriage, the most important thing to do is to keep yourself—and your children—safe. The next step is to get out of the situation as quickly as that safety will allow.
If you have more questions about domestic violence in California, and how this might affect your divorce, we want to help. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out the next best step for you.
Unfortunately, it seems as though the people we love most are usually the ones who end up hurting us the worst. In a family setting, emotional hurt generally makes up the bulk of this pain. However, in the wrong circumstances, the vulnerability of family relationships can easily be twisted, leading to things like domestic violence, abuse, and other serious crimes.
Because of this, family law often shares real estate with criminal law—despite the fact that they technically fall under different court systems. Here, we will discuss some of those crossover situations, and when you might want to include a San Joaquin criminal defense lawyer in your family law case.
Civil and Criminal Crossover Cases
Most of the time, family law matters fall under the civil court system. In civil court, individuals bring suits against each other, and usually arise over things like divorce, property disputes, torts, and contractual obligations. This is different from criminal court, where the government (either state or federal) brings a case against a citizen, directly.
For example, take domestic violence. While it is a family law issue (and thus, subject to civil court), as a crime protected by California’s domestic violence laws, these actions are also subject to criminal ramifications. Here, the government would not need your permission to press its own charges. Once a case has been filed, the government—as an entity—can choose whether or not it wants to pursue other penalties—regardless of how you feel about the matter. Thus, in these situations, a perpetrator could end up facing consequences in both civil and criminal courts.
As family law attorneys, here are some of the most common crossover cases we see between family and criminal law.
Domestic Violence
Domestic violence is defined by harm caused inside of an intimate relationship, and it is one of the most frequent crossovers to come up family court. While most people think of harm as hitting, bruising, and breaking bones, domestic violence actually extends beyond that. Harassing, stalking, threatening, destroying property, making threats—even if they are against another person, and not to you, personally—are all behaviors that fall under the domestic violence umbrella.
In addition to whatever civil court consequences can be earned here (such as divorce orders, damages, and possible alterations to child custody and visitation), the state might also choose to press charges. Depending on the facts, domestic violence can either be classified as a misdemeanor or a felony. Perpetrators could be fined, charged with probation, earn jail time, and even end up in a state prison.
Sexual Abuse
In addition to general provisions regarding sexual assault and rape, California’s penal code specifically mentions spousal rape—because being married doesn’t mean you get to have sex whenever you want. Consent is still critical. Thus, individuals convicted of spousal rape could face the better part of a decade behind bars, pay steep fines, and end up as a registered sex offender for life. Other types of sexual abuse (such as nonconsensual groping, oral, or other touching using threats, force, or harm) can also trigger a crossover cases between family and criminal courts.
The penal code further clarifies that community property cannot be used to assuage liability under these charges. So basically, even if your ex tries to bribe you, by offering a favorable property split in your divorce if you drop the charges, this wouldn’t eliminate whatever penalties are coming from the state in criminal court.
Child Abuse
Other common crossover cases involve children, where abuse, endangerment, neglect, and abandonment are most likely to surface. Typically, California courts do not look kindly on individuals who have committed these crimes, and can levy a sentence of up to six years in state prison, if convicted.
A person who has:
Intentionally hurt a child;
Leaving visible injury; whose actions were,
Outside normal disciplinary actions,
Would likely be guilty of child abuse. In California, spanking your child is legal, however since there’s a lot of interpretation involved in this, if your discipline has been called into question, it’s best to discuss options with your San Joaquin criminal defense lawyer as soon as possible.
Juvenile Criminal Cases
Because children haven’t yet reached the age of majority, most juvenile cases are handled outside the general criminal system reserved for adults. Baring unusual circumstances, juvenile crimes are treated more like civil offenses, or rather “family,” matters, and are exempt from the full force of California’s criminal code. In a juvenile criminal case, the parents are expected to appear in court with their child, and can even be fined on behalf of their child’s behavior.
For these reasons, many family law attorneys also cover a range of juvenile criminal cases.
False Allegations of Abuse
On the other hand, it’s possible you are on the receiving end of abuse allegations. California is a no-fault divorce state, meaning that fault (including abuse) cannot be factored into things like property division. However, that doesn’t mean it wouldn’t affect your divorce at all. Especially if children are involved.
In California, every decision involving a child is analyzed based on the best interest of the child. Naturally, placing a child with an abusive parent would not be in their best interest, and so, abuse allegations—even false ones—could certainly damage a potential custody and visitation schedule in your divorce.
Because the state takes child abuse so seriously, if your spouse has falsely accused you of abuse in order to influence a custody order, it’s critical you notify your San Joaquin criminal defense lawyer as soon as possible.
San Joaquin Criminal Defense Lawyers
While family and criminal law operate under two different systems, because of the emotionally charged nature of families, the two often go hand in hand. If your family law issue has turned ugly, and you believe you need the assistance of a San Joaquin criminal defense lawyer, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. Most of the time, your situation can be handled in house by our competent team of experienced family law attorneys. However, if needed, we can refer your case to other, highly qualified criminal defense lawyers.
On its own, divorce is not an enjoyable process. However, when abuse is involved, fear and anxiety can add a new level of stress to an already tense situation. Sometimes the abuse has been ongoing, other times, it might be sparked by the divorce process, itself. Either way, it’s never okay, and if you or a loved one are afraid of retaliation during divorce proceedings, know that there are options available to help keep you safe.
One common restraining order involved with divorce is a Domestic Violence Restraining Order, which offers protection against someone you are or have been in a relationship with, specifically when domestic violence is involved. However, protective orders are not restricted to violent situations, and are also available to individuals who do not have a history of abuse in the relationship.
Here’s a breakdown of these protective measures, and what you need to know about filing a restraining order in San Joaquin County.
Domestic Violence Restraining Order in San Joaquin County
A Domestic Violence Restraining Order (or, DVRO), is directed specifically at situations where abuse is being delivered by someone you are intimately involved with. This includes a spouse, domestic partner, or someone you lived with, but it also extends to dating relationships. Indeed, living with the person is not a requirement for a DVRO in California. The abuse need only come from a person you are—or were—intimately involved with, and is not limited to just physical harm.
Under California law, abuse is classified as:
Hurting or trying to hurt someone (either intentionally or recklessly);
Any form of sexual assault;
Causing fear of physical retribution (directed at an individual, personally, or toward a loved one);
Actions that prevent an individual from coming and going freely; and,
Issuing threats, which can be verbal, but can also come in the form of harassing, stalking, and the destruction of property.
This includes all forms of emotional and psychological abuse, even in the absence of physical harm. Hence, even if you have not been physically molested, you might still be able to file a Domestic Violence Restraining Order against your tormentor.
How to File a Domestic Violence Restraining Order
Individuals wishing to file a Domestic Violence Restraining Order in San Joaquin County can find the necessary forms either online or at the Civic Center Courthouse. There is no fee to file a DVRO, and an interpreter will be provided if needed. If the forms are filed before 10 a.m., the restraining order will be available between 2:30-4:00 p.m. the same day. If filed after 10 a.m., the order will be ready between 8:30 a.m. and 2 p.m. the following day.
Types of Restraining Orders in San Joaquin County
Generally speaking, DVROs are issued either as an Emergency Protective Order (EPO), or as a Temporary Restraining Order (TRO). Permanent Restraining Orders are less common, but are also available, especially for individuals caught in cycles of long-term abuse. However, even if domestic violence is not involved in your divorce, you can still get a restraining order against your former spouse, and there is a myriad of reasons why you might want to do so.
Below, are the three main types of restraining orders issued during divorce proceedings, and what situations they usually apply to.
Emergency Protective Order (EPO)
Emergency Protective Orders are handled exclusively by law enforcement and are typically requested when a police officer responds to a call of domestic violence. If the threat of harm is imminent, or the victim is unable to file for a restraining order on their own, the officer can call an EPO in to a judge at any time of day or night. The EPO will then take immediate effect and will last seven calendar days, or five business days (whichever is shorter). Civilians cannot file for emergency orders; however similar protections can be found by filing for a Temporary Restraining Order.
Temporary Restraining Order (TRO)
A Temporary Restraining Order is an action that will restrain an individual’s abusive conduct for a limited period of time. While similar to Emergency Protective Orders, TROs do not require a police officer’s request, and also last a little bit longer. Generally, the life of a TRO is about three weeks (20-25 days), after which the petitioner will be required to attend a full, evidentiary hearing. At these hearings, both parties will have the chance to present evidence in favor or against the restraining order.
Ex Parte Hearing
Sometimes, however, the threat is too great to wait for the traditional filing period. In these situations, an individual may request an ex parte hearing, or, in other words, an emergency meeting with the judge. These hearings occur within twenty-four hours of the request, and require the individual to show proof that immediate action is necessary to prevent imminent and irreparable damage to them. Once granted, the filer need only provide informal notice to the opposing party to make the order effective.
TROs and Divorce
Aside from emergency situations, Temporary Restraining Orders are also quite common in divorce cases. Often, they are filed at the onset of a case and will last for the duration of the proceedings. A TRO can be filed even without a history of abuse and can apply to contact as well as to conduct, making it especially useful for the spouse wary of retaliation. For example, a TRO can prevent a vindictive partner from doing something like liquidating assets, emptying bank accounts, or even removing children to another location without permission.
After the divorce is final, individuals who still need continued protection can file for a Permanent Restraining Order.
Permanent Restraining Orders
The final and most long-lasting type of protective measure is a Permanent Restraining Order. In order to obtain one, an individual must show that the fear (or danger) is ongoing, and there is no reason to think it will end. It’s a highly subjective and difficult to standard to satisfy, and are usually issued to protect victims with a history of long-term abuse.
Restraining Order Attorneys in San Joaquin County
In addition to DVROs and the various types of orders found in family law, there are also a number of protective orders available to shield victims in other situations. Understanding the nuances of each category and how to file can be overwhelming, especially when you add the pressure of unseen threats and danger that usually accompany the need for such tactics. If you are experiencing these types of threats—in or outside of a divorce—we may be able to help. Contact our office today at (209) 989-4425, or get in touch online to schedule a consultation, and together we can discuss what protective order might be best for your individual situation.
Courts in California generally recognize that kids benefit most from a good relationship with both parents, even when those parents don’t get along with each other. There are some exceptions, such as cases in which one parent has been abusive, but for the most part, children have a right to have relationships with both parents.
What Do You Mean When You Say Full Custody?
When most people say “full custody,” they typically mean sole custody – a situation in which one parent has legal and physical custody of the child but the other parent does not.
Legal custody is a parent’s authority to make decisions about a child’s education, his or her religious upbringing, health and general welfare.
Physical custody refers to a child’s physical presence with a parent.
Sometimes parents only mean to say that they want full physical custody of their children while the other parent is entitled to visitation. If that’s the case in your situation, your divorce attorney may encourage you to
Requesting Full Custody: What the Courts Need to See
If you’re requesting full custody of your kids, you’ll have to provide the court with a compelling reason your children’s other parent shouldn’t share custody with you. You can’t expect the court to just take your word for it; in fact, you’ll have to prove that there is a valid reason that your ex shouldn’t be part of your children’s lives.
Some of the cases that cause courts to rule entirely in one parent’s favor when it comes to full custody include:
Child abuse. In cases where there is documented child abuse, the courts may grant the non-abusive parent full custody. It’s important that you have documentation to back up your claims, such as photos or police reports, when you’re accusing the other parent of abuse. Remember that false allegations can destroy your credibility, however, and that the court may question your ability to foster a loving relationship between your children and the other parent if you are willing to make false allegations of abuse.
Domestic violence. From the Administrative Office of the Courts: “If a court decides there is domestic violence (now or in the past 5 years) against a parent or the children, the judge must follow special rules to decide custody of the children. Usually, the judge cannot give custody to the person who committed domestic violence. But the judge can give that person visitation.” (Even then, the judge may still be able to give custody to the person who committed the domestic violence.)
Drug or alcohol abuse. The courts can consider substance abuse in a custody dispute, which includes the abuse of prescription medications, street drug use, or alcohol abuse. However, just the allegation (or even proof) that the other parent has used drugs or abused alcohol isn’t usually enough to support a full custody claim. Usually, the other parent must frequently, habitually or continually use illegal drugs or abuse alcohol. (The court may limit parenting time or create other orders that protect the children due to occasional drug use or alcohol abuse, however.)
Abandonment. If one parent has abandoned the children, the courts may recognize that there hasn’t been any bonding between the kids and that parent. In cases such as those, it wouldn’t be in the kids’ best interests to share custody – especially if the other parent is unreliable and may drop right back out of the children’s lives.
Do You Need to Talk to an Attorney About Child Custody?
If you’re still wondering how you can get full custody of your children during your divorce, we may be able to help you. Call us at 209-910-9865 or get in touch with a Stockton divorce attorney online to schedule a consultation today. We’ll discuss your case, find out about your circumstances and start formulating a plan that gets you and your children the best possible outcome.
If you’re like most people, you’ve heard the term grounds for divorce—but what does that really mean, and do you really need to pinpoint a specific reason before you divorce your spouse in California? While it’s typically best to ask an attorney who practices family law in Stockton about the specifics of your own case, here’s what you need to know about grounds for divorce in California.
What Are Grounds for Divorce in California?
California is a no-fault divorce state. That means if you file for divorce, you don’t have to provide the court with a specific reason. You can get a divorce in Stockton and elsewhere in California when you and your spouse simply have “irreconcilable differences.”
You do not have to disclose your reasons for divorcing to the court other than to say that you have irreconcilable differences.
A Word on Irreconcilable Differences
The term irreconcilable differences simply means that neither party in a marriage committed an act that directly brought about the end of the marriage (like adultery, abandonment, or cruelty). When you use this term, it means that neither party is completely at-fault for the marriage’s breakdown.
Will the Grounds for Your Divorce Have an Impact on Your Alimony Award?
Most people don’t want to spill the personal details of a split in a courtroom, and that’s completely fine. It’s important to know that in most cases, the grounds for your divorce won’t have an effect on the amount or duration of an alimony award that you receive.
(Even cheating is unlikely to affect your alimony award. Remember, the purpose of spousal support is to ensure that one spouse doesn’t fall into poverty because of the divorce. The courts don’t use it as a punishment for a spouse’s bad behavior during the marriage.)
There is one exception, though: If your spouse has been convicted of violent or abusive behavior, the judge has the power to reduce or, in some cases, eliminate the alimony that the abuser would normally be entitled to receive.
What the Courts Look at When Determining Alimony Awards
The courts must look at several factors when determining how much alimony will change hands, including:
Each spouse’s earning capacity
How much each spouse contributed to the other’s career, education, and other financially tied achievements
Each spouse’s ability to pay alimony
The needs of each spouse based on the standard of living each enjoyed during the marriage
Tax consequences to each spouse
The balance of hardships each spouse must now endure
This isn’t a complete list. Instead, courts look at these factors and a number of others—including any other factors the judge believes are fair and reasonable—to make an alimony award determination.
Do You Need “Grounds for Divorce” in California?
You don’t need to have a specific reason to end your marriage in the state of California. Whether your spouse had a long-term affair, abandoned you, or simply chose to terminate your marriage is irrelevant to the court. The court’s primary concern is the children of your marriage, if you have them; if you don’t, the court is only interested in overseeing a fair, equitable split that allows both parties to move forward separately.
Do You Need to Talk to a Family Law Attorney in Stockton?
If you’re contemplating divorce, or if your spouse has already filed for a divorce and you need an experienced, knowledgeable attorney in your corner, call us at 209-910-9865 right away. You can speak with a Stockton divorce lawyer who understands what you’re going through—and who’s willing to be your voice in the court system.
