Q. My wife obtained domestic violence restraining orders against me. I
was not guilty of what she claimed I did, but the judge said that all
he needed was a 'preponderance of the evidence' to issue those
orders against me. I had no idea it would make my life a living hell.
After I was kicked out of our home, she took control of 20 properties
that we owned together, and raided our bank accounts - in fact, even before
she called police that night, she was moving money out of our joint accounts.
I was forced out with nothing, including my tools that I need to use as
a diesel mechanic (most employers expect mechanics to work with their
own equipment, and there is no way for me to free-lance without the tools).
I left with only the clothes I was wearing. She was planning the whole thing.
It is now 18 months later and I am living with family. I haven't had
access to anything that we amassed during our marriage, which include
rentals and the properties that I owned at the time we were married (she
made me put her name on the deeds). I need spousal support help. I have
no job and I have no way to get one. But my lawyer tells me that judges
won't ever award spousal support to anybody that has had domestic
violence orders issued against them. What do you think?
It is Essential That You Fight Any Application for Domestic Orders to the Utmost!
This is a very difficult situation, and assuming that your wife trumped
these charges up against you I am sorry for your circumstance. It happens
a lot. Many litigants and their attorneys will exaggerate, and even invent,
domestic violence scenarios to gain advantage in divorce cases. To assume
that every person (be them a man or woman) who claims to be a victim of
domestic violence really has been would be naive. There is no question
that major benefits can inure to parties who successfully allege domestic
violence. While I recognize that the majority of DV victims are women,
I have seen cases where I was convinced a female claimant was gaming the
system. How could it be otherwise -
there is no gender priority for truth.
These benefits for falsely asserting DV include:
Exclusive residence possession (kick out orders)
Ensuring the other party has limited access to children
Making their own spousal support claims seem more meritorious
Anticipating and cutting off an anticipated spousal support request from
a lower earner spouse [FC §§ 4320(i) and
To be fair to judges, these cases are hard to evaluate. The California
legislature has set a very low standard of proof and hasn't cleared
up inadequacies, ambiguities, and contradictions within our own Family
Code statutory scheme and so a default strategy has been assumed that
it is appropriate to treat DV offenders, once a finding has been made,
quite harshly (a good example of this is that the statutes below reference
FC § 6211, when domestic violence is not really defined anywhere in the California
Family Code). There are few appellate decisions that guide trial courts,
and the ones that exist are based upon bad facts at least as far as the
alleged perpetrator is concerned in the sense that the DV offenses were
serious. There is no good appellate court case yet on behalf of an alleged
abuser who committed a relatively minor infraction (i.e., damage to property
with no physical threats or violence), and none that speak to mitigating
I want to be very clear that I abhor domestic violence. But I abhor manipulative
litigation strategies just as much - because I believe that domestic violence
comes in many forms, and that abusing the system to gain power in legal
proceedings is also exactly the type of violence that people, possibly
like you, should be protected against. The problem for judges is that
it is hard to spot, and making mistakes can result in deaths.
So this is where you are:
California Family Code section 4325 provides:
(a) In any proceeding for dissolution of marriage where there is a criminal
conviction for an act of domestic violence perpetrated by one spouse against
the other spouse entered by the court within five years prior to the filing
of the dissolution proceeding, or at any time thereafter, there shall
be a rebuttable presumption affecting the burden of proof that any award
of temporary or permanent spousal support to the abusive spouse otherwise
awardable pursuant to the standards of this part should not be made. (b)
The court may consider documented evidence of a convicted spouse's
history as a victim of domestic violence, as defined in Section 6211,
perpetrated by the other spouse, or any other factors the court deems
just and equitable, as conditions for rebutting this presumption. (c)
The rebuttable presumption created in this section may be rebutted by
a preponderance of the evidence.
Hence, in the event of a
criminal conviction of DV within five years there is a rebuttable presumption of no support,
period. However, notice that rebutting this is by the same standard that
the judge remarked to you about when he/she issued the restraining orders
- in other words, "more probable than not." One hopes that judges
apply the same standards to each question they face.
Family Code section 4320(i), regarding post-judgment spousal support,
is being interpreted by courts as applying to temporary support order
applications as well. It reads:
"In ordering spousal support under this part, the court shall consider
all of the following circumstances:
* * * (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.
* * * (m) The criminal conviction of an abusive spouse shall be considered
in making a reduction or elimination of a spousal support award in accordance
with Section 4325."
not require evidence of any kind of conviction, although of course that would
be relevant - and it cuts both ways: It gives the court discretion to
award more spousal support just as well as giving the court to deny spousal
support, upon "[d]ocumented evidence." Subsection (m) just restates 4325.
Hence, whether a presumption against spousal support attaches per 4325
or is just in the judge's mind under 4320(i), what you need to present
is evidence that will overcome the presumption of 4325. This means: Why
should the court not follow the legislative directive that presumes you
are not entitled to spousal support? There is no case yet that gives trial
courts any guidance on this subject (i.e., "what needs to be proved?"),
and it will take a dedicated judge who is deeply passionate about the
law - and the proper facts - to turn the populist pendulum that is still
in reactive mode to the deplorable sins that true DV generates.
I recommend the following arguments for rebutting the presumption, as
- Assuming that you had a criminal conviction, argue that you served your time
- Assuming that you were ordered to complete a 52-week batterer's program,
argue that you complied
- If you have a long term marriage, i.e., for more than 10 years point that out
- Did your Wife allege a single incident or a pattern of incidents? One of
the thorny problems concerning domestic violence restraining orders is
that so many different types of conduct, ranging from merely annoying
to life threatening, can give rise to them. What your wife alleged in
terms of the apparent seriousness (or lack of injury) of your offense
might mitigate in your favor by a preponderance of the evidence when balanced
against your need for support and all other relevant circumstances considered together
- If there is evidence that you and your wife were mutual combatants at any
time, i.e., that (as with too many families) you both behaved badly, present
- Remind the court that at worst you have the same burden to justify support
now as your wife had to justify DV orders then
- Point out that you have been deprived of your livelihood by reason of your
Wife's conduct, and that she is, as you say, in control of not only
your properties, your joint funds, but also your tools
Demonstrate that your spouse took control of all the assets, even before
the DV situation erupted, not to attack the prior court ruling (which
your present judge will always assume was valid and binding), and that
she has maintained this control to such an extent such that you have been
entirely deprived of your community property entitlements (in breach of
fiduciary duties owing you from her) but also that you have been deprived
of the very items that would allow you to be self-supporting.
Where DV is indeed trumped up, the reporting party tends to behave in predictably
controlling ways. Point this out together with any relevant conduct on the part of your
spouse - has she met her sua sponte disclosure obligations? Has she ruined
your credit by not paying some of property creditors that you are obligated
on? Has she changed your mailing address so that you didn't receive
information that might impact your livelihood?
- I cannot overstate that the likelihood is that only a breach, or the substantial
appearance thereof, of fiduciary duties on the part of your spouse will
meet your burden. Fiduciary duties and alleged spousal abuse are linked
at the hip....
- Remind the court more than once that you have met your own burden of proof
by the same standard that allowed you to get into this mess
Request an evidentiary hearing to establish all of the foregoing. Remember
Family Code section 217!
This is a difficult situation. We need a good appellate decision on it,
or some legislative guidance.
As I come up with other ideas I will come back and supplement this article.
Thurman W. Arnold, III, CFLS