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