How does domestic violence affect divorce?

| Oct 28, 2019 | Firm News

You lived with the abuse for far too long. Leaving your spouse and getting a divorce is the next step. Although you are afraid of what may happen when your spouse gets the divorce papers, you know now is the time. 

California is a no-fault state regarding divorces, but there are some instances where there may be grounds for fault. One of these is domestic violence. 

Victims of domestic violence who want to get a divorce have the option of petitioning the court for a protective order. Living together during this time may be difficult, and the injured spouse may fear for his or her life and the lives of the children. Receiving help to get the abuser to leave the home may make it easier to get through the divorce proceedings. 

The court can issue a “kick-out order.” This is a type of restraining order issued in emergency cases. The injured spouse must prove three things to receive an order: 

  1. The victim has a legal right to possess the home.
  2. The victim and the children would suffer physical or emotional injury if the abuser were to remain in the home.
  3. The person the victim wants to leave the home assaulted or threatened the injured spouse or children.

California Family Code states that if a spouse receives a misdemeanor criminal conviction for domestic violence that results in probation within five years of the petition for divorce, property and compensation may be handled differently from a no-fault divorce. 

These may include: 

  • The convicted spouse may not receive spousal support. 
  • The injured spouse may get up to 100% of the community property interest. 
  • The parties’ community assets will pay for attorney’s fees and costs. 
  • The injured spouse may not have to pay attorney fees out of his or her separate property. 

Yet, during these types of proceedings, there is a refutable presumption. In this case, if domestic violence is a fault for divorce, then the assumption is that this is correct unless the convicted party comes forward to contest it.