Thurman W. Arnold III


Q. My wife was arrested for domestic violence about seven years ago (two years before we married). She threatened me with a gun. Police were called and she was arrested. I didn't want to press charges but the District Attorney insisted. Ultimately she was granted probation on a lesser charge because I refused to cooperate, and the case was later dismissed when she completed it. Now I wonder if I can defend myself from having to pay temporary spousal support on these grounds?

Chuck, Mar Vista, CA


There are several California Family Code sections that may be of value to you. These include Family Code section 3600, section 4320, subsections (l) and (m), and section 4325. However, you have some problems and I will point them out.

Family Code section 4325 creates a rebuttable presumption that temporary or permanent alimony to an abusive spouse should not be ordered, "where there is a criminal conviction for domestic violence" by one "spouse" against the other entered "within five years prior to the filing of the dissolution proceeding."

Here, you two were not spouses when the DV occurred; moreover, you are outside the five year relevant look-back. Possibly the reference to 'spouses' is a matter of semantics that simply represents the parties' present status at the time of the request and not the event, but the five year cut-off is likely deadly to your argument under this section. As an aside, I want our readers to know that trial and appellate courts have held that a criminal conviction of spousal battery is not required (Penal Code section 273.5). It can be any lesser included defense - even simply a plea to disturbing the peace. The key is what allegedly transpired, and not the plea arrangement. So the lesser offense she pleaded to, and the fact of probation, is irrelevant.

However, while section 4325 would seem not to apply for you, there is another argument you can make. While Family Code section 4320(m) requires courts to consider criminal convictions "in accordance with Section 4325" - back to where we were - subsection (l) does not. Instead it states that courts must consider "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." Note there is no reference to "spouses" here.

So, most lawyers would argue that this section, Family Code section 4320, only applies to "permanent support" at the time of trial, as opposed to temporary support requests. Not so, in my opinion. Family Code section 3600 is the "temporary" alimony statute, and it says: "the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325...."

Therefore, (1) there is no express five year time bar in 4320, (2) domestic violence can be set up as a defense to both temporary or "judgment" spousal support, and (3) the Court is limited to making orders that are "consistent" with either, or both, of these sections.

We have no reported case on point that I know of yet.

Here are some related Blogs on this subject that may be of value.

Good luck out there!