Divorce cases involving domestic violence can be tricky in San Diego. When facing allegations of domestic violence, it is important to consult with a San Diego family law attorney who can advise you of all of the effects that a Domestic Violence Restraining Order may have in your divorce case.
Below is a list of the top three effects a domestic violence restraining order can have on a divorce case, outside of the direct effects of the restraining order itself.
A domestic violence finding against you could result in the court terminating your ability to receive spousal support, even if your spouse earns more than you. California Family Code Section 4325(a) creates a presumption that a spousal support award to a person who has been found by a court to have perpetrated acts of domestic violence against their spouse is prohibited.
This presumption can be rebutted by using the appropriate evidence outlined in Family Code Section 4325(b) and (c). You will need evidence and a strong legal argument in order to overcome the presumption against you. A San Diego divorce lawyer will be able to assist you in gathering and organizing evidence, and craft legal arguments in order to rebut the presumption that you are not entitled to receive spousal support because of a finding of domestic violence against you.
A domestic violence finding against you could also result in the court awarding your spouse 100% of the community property interest in certain retirement accounts. California Family Code Section 4325(d) states that the court may determine that the injured spouse in a domestic violence case is entitled to up to 100% of the community property interest in the injured spouse's retirement and pension benefits.
If you have been found to have perpetrated an act of domestic violence against your spouse, you could lose out on your portion of the community property interest in your spouse’s retirement accounts.
There are many factors a judge needs to consider when deciding how to divide an injured spouse’s retirement accounts. Hiring a San Diego divorce lawyer will set you up for the best chance at receiving your half of the community property interest in all retirement accounts in San Diego family court.
Most importantly, a domestic violence finding against you could have a severe effect on your parental and custodial rights regarding your children. According to California Family Code Section 3044, if a court has decided that you committed acts of domestic violence against your co-parent, any of your children, or your children’s step or half siblings within the previous 5 years, the court must make the presumption that you are not fit to share equal custody (or have sole custody) of your children. This presumption means that it is very likely that your spouse will be named the primary parent to your children.
While this section of the law has some serious legal consequences, the presumption is rebuttable, meaning that with the right San Diego divorce lawyer in your corner, it is possible to overcome the presumption that you shouldn’t have joint or sole custody of your children. A San Diego divorce lawyer will advise and guide you on the actions to take to rebuild the court’s trust in you, so that you can have the best case for increasing custody of your children in light of a finding of domestic violence against you.
If you are up against domestic violence allegations in San Diego and need assistance in defending against the allegations or recovering from a court’s finding of domestic violence against you, the attorneys at Cage & Miles are highly trained attorneys who are ready to assist you. Consulting with a San Diego divorce lawyer at Cage & Miles will help you to learn all the consequences that a domestic violence restraining order can have in your divorce case, and help strategize with you what you need to do in order to limit any negative consequences a domestic violence finding may have on the rest of your divorce case.