Thurman's Tips -
Avoiding Spousal Support Because of Domestic Violence
]Family Code section 4325 applies to block both temporary and permanent,
or judgment, spousal support. All that is required is a documented history
of even one DV event, and included is a conviction of Penal Code section
273.5 even if you plead no-contest, or only plead to a misdemeanor "disturbing
the peace". Family law courts don't care what you are convicted
of, so the only way to avoid the presumption is to have the charges dismissed
or win at your criminal trial. This presumption is a major source of false
DV claims spouses who are outraged you might be able to collect support!
For More Tips and Pointers About How Domestic Violence Claims Can Limit
Read about the Presumption Against Spousal Support to an Abusive Spouse
on our Blog
CALIFORNIA FAMILY CODE
NO SPOUSAL SUPPORT TO ABUSIVE SPOUSE
Family Code Section 4325
(a) In a proceeding for dissolution of marriage where there is a criminal
conviction for a domestic violence misdemeanor or a criminal conviction
for a misdemeanor that results in a term of probation pursuant to Section
1203.097 of the Penal Code perpetrated by one spouse against the other
spouse entered by the court within five years prior to the filing of the
dissolution proceeding or during the course of the dissolution proceeding,
there shall be a rebuttable presumption that the following shall apply:
(1) An award of spousal support to the convicted spouse from the injured
spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's
fees and costs incurred by the parties to be paid from the community assets.
The injured spouse shall not be required to pay any attorney's fees
of the convicted spouse out of the injured spouse's separate property.
(3) At the request of the injured spouse, the date of separation, as defined in
Section 70, shall be the date of the incident giving rise to the conviction, or earlier,
if the court finds circumstances that justify an earlier date.
(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.
(d) The court may determine, based on the facts of a particular case, that
the injured spouse is entitled to up to 100 percent of the community property
interest in the injured spouse's retirement and pension benefits.
In determining whether and how to apportion the community property interest
in the retirement and pension benefits of the injured spouse, the court
shall consider all of the following factors:
(1) The misdemeanor domestic violence conviction, as well as documented
evidence of other instances of domestic violence, as defined in
Section 6211, between the parties or perpetrated by either party against either party's
child, including, but not limited to, consideration of emotional distress
resulting from domestic violence. The court shall also 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.
(2) The duration of the marriage and when, based on documented evidence,
incidents of domestic violence, as defined in
Section 6211, occurred.
(3) The extent to which the convicted spouse's present or future earning
capacity is impaired by periods of unemployment that were incurred during
the marriage to permit the convicted spouse to devote time to domestic duties.
(4) The extent to which the convicted spouse contributed to the attainment
of an education, training, a career position, or a license by the injured spouse.
(5) The balance of the hardships to each party.
(6) Any other factors the court determines are just and equitable.
(e) As used in this section, the following definitions apply:
(1) "Domestic violence misdemeanor" means a misdemeanor offense
for an act of abuse, as described in paragraphs (1) to (3), inclusive,
of subdivision (a) of
Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject
of the domestic violence misdemeanor for which the other spouse was convicted.
(f) The changes made to this section by the bill that added this subdivision
shall only apply to convictions that occur on or after January 1, 2019.