Q. I obtained Domestic Violence retraining orders against my ex, but I
earn more money than she does. Can I use those orders as a defense against
her request for temporary spousal support from me?
A. Yes, you can - perhaps quite effectively.
It is evident that California Judges and Family Court Commissioners are
being trained at judicial college to take seriously the language of
Family Code section 4320(i), which is one of the factors that the legislature has declared trial courts
must evaluate in entering post-judgment or "permanent" alimony
orders. That subsection reads that courts must consider:
"i) Documented evidence of any history of domestic violence, as defined in
Section 6211, between the parties, including, but not limited to, consideration of emotional
distress resulting from domestic violence perpetrated against the supported
party by the supporting party, and consideration of any history of violence
against the supporting party by the supported party."
Documented evidence includes at a minimum an Order After Hearing issued
against a person upon a DV application for conduct described in Section
6211. Obviously it includes criminal arrests and convictions.
The definitions of what constitutes domestic violence in California are
set forth in
Family Code section 6320. These are interpreted broadly. One of those definitions includes reference
to "disturbing the peace of the other party." That definition
can include all kinds of objectionable behavior, and really means that
if the Judge is offended by the conduct, it is a form of domestic violence.
The recent case of IRMO Nadkarni (2009) 173 Cal.App.4th 1483 extended
DV protections to breaking into the Wife's email account and then
disseminating what the Husband had obtained there. It is also included
allegations of physical threats. The trial judge was reversed in his belief
that this was not sufficient misconduct. Clearly the legislature and the
appellate courts want to send a message that DV must stop - which is a
very good thing.
However, I am aware of a case where a husband was living in a casita attached
to the family residence, after he moved out of the main house to avoid
his wife - who was constantly verbally harassing him. She then changed
the locks. He decided to move to a different address entirely, but after
he got back into the house (which was community property) without breaking
in, he allegedly removed some his belongings and took some items that
belonged to both of them, and also reportedly messed up her personal effects.
She sought and obtained domestic violence restraining orders, claiming
that he had violated her rights by entering what was a jointly owned property,
and that this caused her fear. It is possible that she seized upon his
entry as a tool to avoid paying him spousal support.
After the judge entered her restraining orders, the husband's motion
for spousal support was heard. The trial court refused to award him any
support, despite his earning $2,000 and her earning $14,000, based upon
the DV order and the emotional distress she had supposedly suffered when
he removed his belongings.
This can be viewed as an invitation to spouses to abuse their domestic
violence protections regardless of gender. Yet, domestic violence is a
terrible epidemic that affects women and children most often, and it must
be treated with the utmost seriousness. Often men are the instigators,
but not always. I don't care whether the perpetrator is a man or a
woman - the same rules should apply to both sexes.
Family Code section 4320 is used for long term spousal support awards,
but courts are applying 4320(i) even at the temporary support stage to
augment or deny spousal support claims. There is some appellate support
for that view.
So, you may have a very good defense to paying your ex any spousal support
because of the domestic violence orders that you obtained and you should
assert it. I hope the courts will be gender blind in enforcing these orders
- meaning, I believe it is very important that we apply the same rules
to all people, period.
Thurman W. Arnold III