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.
One question that clients sometimes ask us is, “What happens if my spouse is dating during divorce?”
It’s a fair question. Until the ink dries on your order, you’re still technically married, and in many jurisdictions, infidelity can have a significant, detrimental impact on how divorce proceedings shape up—particularly when it comes to things like property division and alimony.
So, what does that mean for you? Do you need to be worried about dating during divorce in California?
We’re glad you asked.
Breaking the Marriage Contract: Fault or No-Fault?
Marriage might mean a lot of things to a lot of people, but for legal professionals it all boils down to a contract; a legally binding agreement for two adults who have decided to share their lives together.
Divorce, then, is the opposite. It is the severing of one life into two, so to speak. When this happens, the marriage contract (which was created on your wedding day), must be broken.
In general, there are two ways to do this: 1) No-fault Divorce, where neither party shoulders blame for the breakup; and 2) Fault Divorce, where the guilty party is held accountable for their role in the marriage’s failure.
Back in the day, pretty much every jurisdiction required you to show proof of fault in order to get a divorce. These days, however, it’s the opposite, with every state now offering some kind of no-fault divorce grounds, and most doing away with fault, altogether.
But how does fault apply to dating during divorce? you might be wondering.
Because, dear reader, in some jurisdictions, dating during divorce could actually trigger a claim for fault-based divorce grounds.
Dating During Divorce and Fault
Fault-based divorce grounds come in a variety of shapes and sizes, from felonies to infertility, and other things in between. However, the one thing that all fault states have on their Naughty List, is infidelity.
Infidelity (or adultery) is when two people engage in sexual relations, and at least one of them is already married… to someone else.
In a fault-based jurisdiction, this could potentially mean the cheater gets less marital property, less alimony, and/or saddled with more than their fair share of marital debt. All of which is meant to penalize them for causing the marriage contract to fail.
Of course, dating during divorce doesn’t always lead to sex, but it often does, and those who do are leaving themselves wide open to grounds for adultery—claims that can have some pretty catastrophic ramifications for cheaters living in a fault-based jurisdiction.
However, luckily for cheaters in the Golden State, California is not one of those jurisdictions.
California and Fault-Based Divorce
California is one of the many states that have completely done away with fault-based divorces. So, not only are you (legally) permitted to commit adultery to your heart’s content, you can also date during divorce without having to worry about putting your share of marital property in danger. (Not that we’re promoting adultery or anything, here, because obviously, that’s not cool. We’re just saying that dating isn’t likely to raise any legal red flags.)
The only way cheating might be held against you in divorce court, is if you included an infidelity clause in your prenuptial agreement. So long as the prenup is valid, the court will likely enforce whatever penalties you willingly submitted yourself to when you got married.
That being said, even if you aren’t having sex, there are still a few things you might want to be warry of, if you’re thinking about dating during divorce.
Dating During Divorce in California
Alright, so you’re legally permitted to commit adultery in California. Cool. So, does that mean dating before everything is official never impacts a divorce’s outcome?
Not exactly.
While California courts won’t consider fault—and, by extension, infidelity—when dividing up assets, there are a few things you might want to remember, before powering up your Tinder profile…
1. Marital Money Doesn’t Belong to You, Alone
California courts might not penalize you for having an affair, but that doesn’t mean you’re free to spend marital assets on your new squeeze.
California is a community property state, which means anything that either of you acquire after marriage, belongs to both of you equally—no matter whose name is on that paycheck. This means that if your divorce isn’t finalized yet, you’re not just spending your money on your dates. You’re spending your spouse’s money, too. (Awkward.)
Hence, your judge will likely require you to reimburse whatever money you spent on dates before divvying up marital property. And, depending on how discreet you were (and how long you were dating before divorce), this could end up being a lot.
2. Don’t Neglect Your Children
Just like dating won’t directly affect marital property, neither will it directly affect your custody arrangement. However, it could have an indirect effect…
In California, custody decisions are made according to the best interest of the child. If you are neglecting your child in favor of your dating life, or if your dating life is exposing them to harm in some way, then the court might think twice about how large a role you should play in your child’s life, post-divorce.
Bottom line? If dating during divorce, keep your priorities straight, and remember that being a parent comes first.
Dating During Divorce: Just Don’t
Like with many things in life, just because you can date during divorce, doesn’t mean you should.
Breaking up with a spouse is extremely stressful. This is someone you once loved enough to say, “I do,” so even if you know it’s the right decision, there will still be a lot of complicated emotions clouding the waters. (Not to mention demands on your time). And those aren’t the most ideal conditions for starting a new relationship.
Do yourself a favor, and simply don’t date during divorce. Your kids need you right now. You need you right now. Wait until everything is finalized; until you’re in the right frame of mind to give your full heart to someone new.
Trust us, you’ll be glad you did.
Divorce Attorneys in California
While dating during divorce is unlikely to have a direct impact on your breakup, it’s not necessarily the best idea—especially when kids are involved. If you have more questions about why, or want to discuss other divorce-related questions, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help this process run smoother for you.
With adultery clocking in as one of the leading causes of divorce, it’s no wonder people are interested in how it might affect their split. Specifically, the question many divorce lawyers get asked, is whether or not adultery is illegal.
It’s a fair question. Especially considering that over twenty states actually do attach criminal punishments for infidelity. Consequences that can range anywhere from a slap on the wrist, to a misdemeanor, and in some states, even a felony. In Idaho, for example, adulterers could face up to three years’ jail time, while in Wisconsin, cheaters might just find themselves with a hefty, $10,000 fine.
Unfortunately, as satisfying as it would be to bring a cheating spouse to court on criminal charges, if you live in California, it’s not an option. While adultery is, undoubtedly, a morally questionable decision, it’s not actually a crime in the state of California.
However, just because California doesn’t make adultery illegal, doesn’t mean there aren’t consequences for cheating. Here’s what you need to know about adultery laws in California.
No-Fault Divorce and Adultery
First off, California is a no-fault divorce state, which means that couples do not have to state a reason for the dissolution. In fact, there are only really two grounds available for getting divorced in California: 1) irreconcilable differences; and 2) incurable insanity. So even if an individual wanted to make adultery their grounds for divorce, it’s just not an option.
Things weren’t always this simple. In the state’s early days, if a couple wanted to split, the law basically required a showing of fault (usually adultery). Which—far from actually deterring people from divorce—ended up spawning an environment that encouraged lawbreaking. Because what’s a little perjury when faced with an eternity of marital hell, right?
This blatant flaunting of the law is what eventually drove lawyers and judges to advocate for a simple, straightforward process of securing a divorce. And not long after, the modern-day, no-fault system was born. The upside of this being that divorce is now simple and does not require one to commit perjury to secure a split. The downside, however, is that a slighted individual hoping to benefit from their spouse’s wandering ways will find themselves out of luck, as cheating does not directly affect how courts split marital property.
Still, that doesn’t mean adultery doesn’t matter at all in California, and here’s why.
Adultery Laws and Marital Property in California
Marriage is, at its most basic function, a contract. An agreement, in which two people decide to join their lives—and belongings—under a single umbrella. So, from that point forward, all assets acquired are considered community property. In layman’s terms, this means that everything belongs to both individuals—regardless of which spouse earned the paycheck. And this is where an adulterer might get dinged.
Since all the money in the pot belongs to the spouses equally, an adulterer who spends marital property on an affair is essentially spending cash that doesn’t belong to him—or, at least not just to him. Which means payback will be in order. Sometimes, this means replacing the money into the account before the assets are divided. Other times, the cheater might end up with a smaller piece of property pie, in order to compensate for erroneously spending marital property on an affair.
The catch is, that it can sometimes be difficult to prove how much money was wasted outside the marriage, as the savvy adulterer might not leave a paper trail. Gathering as much information as possible will help your divorce attorney give you the best chance at being fairly compensated for these losses.
Adultery Laws and Custody
In California, adultery does not affect child custody, which is always decided under the Best Interest of the Child standard. This precedent operates under the assumption that a child’s best interest is to have a loving relationship with both parents whenever possible. And, regardless of an individual’s personal feelings toward their cheating other half, infidelity does not actually mean someone is a bad parent.
The only way adultery would affect custody in California, is if the affair had an adverse effect on the individual’s parenting. For instance, leaving a child home alone to meet up with a lover, having sex in front of the child, or exposing the child to drugs or abuse. Short of putting the child’s mental and physical well-being at risk, though, adultery does not come into play for these decisions.
Adultery Laws and the Third Wheel
In contrast to adultery laws, Alienation of Affection suits, are charges which assign damages to the home breaker in the adulterous duo. This is done on the assumption that, without the individual’s interference, the marriage would not have failed.
However, just as adultery is not against the law in California, Alienation of Affection suits have similarly been done away with. In this state, you cannot sue your spouse’s lover for damages, though, that’s not the case for every jurisdiction. For example, in 2019, a North Carolina man won a $750,000 suit against his spouse’s lover. These antiquated laws—which hail back to the day when women were considered property—are understandably controversial, and it’s questionable how much longer they’ll remain in the books. For now, though, Alienation of Affection suits are not something couples in California have to worry about.
Adultery Laws and the Military
Finally, while there are no specific adultery laws in California, those in the military might still want to be careful. Under the Uniform Code of Military Justice (UCMJ), adultery is, in fact, a criminal offense, based on the premise that the act undermines order and discipline. Thus, military personal caught committing adultery could earn themselves a dishonorable discharge, not to mention the forfeiture of any future payments, and up to one year’s confinement—regardless of whether or not their specific state criminalizes the act.
Furthermore, even couples who are legally separated might want to avoid romantic relationships until their divorce is final, as the military does not recognize legal separation as a defense to adultery.
Divorce Attorneys in California
Even though there are no specific laws prohibiting adultery in California, infidelity still can still muddy the divorce waters. If you or a loved one have more questions about how adultery might affect your California divorce, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let our skilled team of California divorce attorneys help secure the best outcome for your unique circumstances.
