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?

"Fred"

It is Essential That You Fight Any Application for Domestic Orders to the Utmost!

These benefits for falsely asserting DV include:

• Exclusive residence possession (kick out orders) [FC §6321]
• Ensuring the other party has limited access to children [FC §3044]
• Making their own spousal support claims seem more meritorious [FC §4320(i)]
• Anticipating and cutting off an anticipated spousal support request from a lower earner spouse [FC §§ 4320(i) and 4325]

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 circumstances.

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."

4320(i) does 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 applicable:

• 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 that evidence
• 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