Get the 411 on Domestic Violence and Divorce in California

Domestic violence, particularly among marital partners, can manifest itself in ways that many people might not immediately think of as “abuse.” In fact, the California Family Code offers a multitude of ways in which abuse and domestic violence may be defined. 

What Defines Domestic Violence under California Law?

“Abuse” is first defined as any of the following:

1. To intentionally or recklessly cause or attempt to cause bodily injury.
2. Sexual assault.
3. To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

However, the California Family Code also expands upon many other types of behavior that may be considered abuse, such as stalking, threatening, battering, credible impersonation or false personation, harassing, excessive and annoying telephone calls, destruction of personal property, disturbing the peace of the other party, and more. 

Importantly, the California Legislature recently expanded upon the definition of “disturbing the peace of the other party” and the California Family Code now provides several definitions for “coercive control” that might disturb one’s peace. The examples the Code now provides include, but are not limited to, the following: 

1. Isolating the other party from friends, relatives, or other sources of support.
2. Depriving the other party of basic necessities.
3. Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.
4. Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.
5. Engaging in reproductive coercion, which consists of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes.

Here's How Domestic Violence Can Impact a Divorce in California

While California is a “no-fault” divorce state—meaning the Court does not need a reason to divorce a married couple beyond simple “irreconcilable differences”—this does not mean that a Court finding of domestic violence perpetrated by one spouse upon the other will not have a significant impact. 

If you have children and the Court makes a finding that you perpetrated domestic violence upon your spouse or your children, there is a rebuttable presumption that awarding you sole or joint physical or legal custody of your children is detrimental to their best interests. In other words, it will be significantly more difficult to overcome—or “rebut”—that presumption if your goal is to share your children equally with your spouse.

If your marriage is long-term (over 10 years) and the Court makes a finding that you perpetrated domestic violence, then this is a factor the Court must consider when deciding an appropriate award of spousal support from one party to the other. If you are the person against whom a finding of domestic violence was made and you are the support payor/obligor, then the Court may use said finding to award the payee/obligee more in spousal support every month.

Conversely, if you are the payee/obligee and a finding of domestic violence has been made against you, then the Court might find you are entitled to less or nothing in monthly spousal support than you would be awarded absent said finding. 

Regarding the cost for attorney’s fees, the California Family Code provides ways in which either side can pursue the other to pay for his/her fees. If the Court makes a finding of domestic violence and issues a permanent restraining order, it must make the perpetrator pay the other party’s attorney’s fees and costs, provided that the Court determines the domestic violence perpetrator has the ability to pay.

Importantly, if the Court denies the restraining order, then the party who filed it may be ordered to pay for the other side’s attorney fees, but only after establishing that the applicant’s request was “frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.” Cal. Fam. Code § 6344. 

It should be noted that domestic violence in any divorce case can often make the path towards amicable settlement significantly more arduous and time-consuming. Not only can domestic violence proceedings turn into protracted litigation, they often impede other progress that could be made in the absence of domestic violence, like division of assets and debts, child/spousal support, child custody and visitation, etc. In other words, if an application for a Domestic Violence Restraining Order is filed in your case, you may wish to anticipate a lengthier, costlier time in Family Court.

The Role of Expert Testimony & Evidence in Domestic Violence Divorces in California

Sometimes, absent documentary evidence or third-party witnesses in domestic violence cases, abuse can be difficult to prove to the Court, often coming down to a “he said/she said” contest. However, one effective tool to “break the tie” in this instance is to introduce expert testimony should your domestic violence case call for it. 

On which kinds of “evidence” might you want an expert to testify? Evidence is defined as “testimony writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” Cal. Evid. Code § 140.

What makes a person an expert within a certain field? “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special skill, experience, training, or education must be shown before the witness may testify as an expert.” Cal. Evid. Code § 720. 

Not only can an expert support a successful divorce—through child custody evaluations, forensic accounting, to name a couple of examples—but they can also create a pathway to safety and security with a domestic violence restraining order. An expert’s testimony can provide legal levity to your verbal arguments that can help prove the abuse allegations you are alleging—or defend against your spouse’s abuse allegations. 

For example, for physical injury, an expert can be used to describe the injuries and explain how they may only be inflicted through physical abuse. Another expert can testify to the psychological inner workings of a spouse who endured abuse for years before deciding that enough was enough, even if they did not speak up sooner. An expert can also testify to the psychological impact that witnessing abuse and domestic violence can have on a minor child. 

Find Peace & Regain Your Freedom from Domestic Violence

Whether you are on the petitioning side or the responding side of a domestic violence restraining order in California, it can often feel like there is no end in sight. And if filing a restraining order is your first step into the complex world of family law—with issues like divorce, parentage, support, or custody and visitation to follow—it can all certainly feel overwhelming. But it is important to remember that divorce is also your first step on the path to regaining your peace, safety, and freedom so that you can get back to living life on your own terms.

If you are considering filing a restraining order against your spouse or romantic partner or if you find yourself on the receiving end of one, our team here at Cage & Miles is eager to help. Please do not hesitate to contact us for a free 30-minute consultation with one of our many experienced family law/domestic violence attorneys to discuss your options moving forward.