Cage & Miles emphasizes that your safety is the highest priority. If you or your family is experiencing domestic violence or child abuse (which often coincides with alcohol or drug abuse) please consider creating a safety plan and learning about local domestic violence resources in your area.
These situations are very individual on a case-by-case basis, so it is best to contact a family law attorney to discuss the specifics of your case and determine next steps.
Drug Abuse and Divorce Laws: It is important to know from the start of your divorce or separation that California is a “no fault” divorce state. That means that a spouse cannot be blamed for being the primary cause of a divorce. For example, the court will not consider or punish a spouse for infidelity that causes a divorce. However, there are certain situations throughout the divorce where one spouse’s bad acts can or will be considered by the court. When children are involved, for example, the courts are more likely to weigh alcohol or drug abuse.
How to Prove Alcoholism in Divorce Court: Proving alcoholism or drug abuse in court can be tricky. If you decide to attempt to prove alcoholism or substance abuse, you will need to collect and demonstrate concrete evidence. Without definite evidence, the court has no reason to make any changes concerning how the divorce or custody is handled. Some examples of evidence that you could use are:
You may be able to ask for a court-ordered psychological examination to screen for and prove substance abuse and addictions. This is especially true if child custody is at issue and you are wanting to protect your children while they are with your spouse. Family Code section 3011(d) specifically requires the court to consider “the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent” when making a custody decision. If the court finds that it is more likely than not that a parent is abusing alcohol, then it can order an evaluation to better understand what parenting plan would be in the best interest of the child or children.
Even though the courts aren’t required to consider substance or alcohol abuse, they still might, depending on the evidence you provide. Some of the key issues that come into play when divorcing an addict are child custody and child support, spousal support/alimony, and property division. The court is required to act in the child’s best interest, so if one spouse is proven to be abusing any substances, that will certainly play a role in child custody decisions. We’ll discuss some of the corroborating evidence the court can look at to prove that there is substance abuse going on, such as criminal offenses, medical records, witnesses, and random alcohol testing.
When it comes to determining spousal support and property division in a divorce due to alcohol abuse, measures can be taken in the proceedings to reimburse one spouse if the other spent a large amount of the marital assets on drugs or alcohol.
Substance and alcohol abuse are most likely to impact how child custody is determined in a divorce case. That’s because the child’s well-being automatically becomes priority number one in the eyes of the court. The court will first attempt to uphold frequent and continuing contact between the children and their parents, absent any major reasons not to do so, such as alcohol abuse. (Fam. Code, § 3020.)
Proving Alcohol Abuse in Custody Proceedings: Evidence of abuse is not always brought to the court’s attention by a spouse. A court might also become aware of the concern through another witness or Child Welfare Services. Even if you demonstrate evidence of an addiction or substance abuse problem, the court may still allow visitation so long as the parent is in recovery, is actively receiving services for their addiction, staying sober and is not considered a danger to the child(ren).
Alcoholism and Child Custody: If however, a parent’s addiction is still severe and is shown to be a danger to the children, the court can make specific custody orders to protect the children. Examples include:
It is only in extreme circumstances when the court will consider revoking all visitation privileges from one of the parents. This is especially true if there are also findings of domestic violence. However, if a parent can show that he or she is actively addressing an addiction and staying sober, they will have a chance to at least continue visiting with their children on a regular basis, supervised or not.
Separating from an alcoholic spouse can certainly be stressful when there are children involved. Even if there are no minor children at the time of the divorce, the court may still consider alcoholism when it comes to the fair and equitable division of assets and debts. This typically happens when there is evidence that the problem has taken a financial toll on the family unit.
A common example is when the alcoholic spouse funnels financial resources away from the family unit to satisfy their addictive behavior. A spouse may spend funds earned during the marriage by either spouse on drugs or excessive amounts of alcohol.
If this is the case, then you may be awarded a larger portion of the assets or property to compensate for the financial loss during the marriage due to a spouse’s drug or alcohol addiction. The California Family Code provides “Special Rules” for these unique circumstances. (Fam. Code § 2600.) Family Code section 2602 allows a court to award additional property to one spouse to make up for the other spouse’s deliberate misappropriation of funds during the marriage.
If at the time of your divorce, there are no longer any assets, and only debts, the court can order one spouse to take on more of that debt if those were incurred to support that spouse’s alcohol addiction. (Fam. Code § 2622.) If the court finds certain debts incurred by a spouse during marriage that were not incurred for the “benefit of the marital community,” the court may confirm that debt to the spouse who incurred it. (Fam. Code § 2625.) This means if a credit card was used by one spouse for his or her alcohol addiction, and not for expenses that support your children or your marital household, the court may assign that debt to the alcoholic spouse alone after reviewing those credit card statements.
Spousal Support for an Alcoholic: Demonstrated alcoholism or drug abuse can impact how spousal support and child support are determined. Child and spousal support are largely determined based on each party’s income. If a party’s income is reduced due to alcoholism, this may affect the support number decided by the court. For example, the addicted spouse may be unemployed or underemployed because of their condition. A vocational evaluation may be ordered to understand the depth of how the addiction impacts their income. If the court finds that a party’s addiction truly interferes with their ability to earn income, then the reduced income may be used to calculate support. The court can then order that party to seek treatment as part of their efforts to become self-supporting and gain employment.
The court may also find that a party’s addiction does not impair their ability to earn and that party is simply choosing to not earn to their full potential. If that is the case, then the court may consider the previous full earning potential of the addicted spouse as a better indicator of how much they should owe in terms of spousal and child support.
If you are a spouse of an addict, you may want to consider how ability and opportunity to earn can increase the amount of support you receive or reduce the amount of support you owe.
Once a support order is put in place and an alcoholic spouse or parent decides not to pay the support amount, you can obtain a judgment from the court for the past amounts due and collect on those support amounts, plus interest.
Even though California is a no-fault divorce state, the court may still consider substance abuse or alcoholism during your divorce proceedings. Ultimately it comes down to your ability to provide sufficient, concrete evidence.
If the court does decide to consider your spouse’s alcoholism or substance abuse problem, it can impact the final division of your marriage in three ways:
Divorcing your spouse can put you through a whole range of emotions. Substance abuse can be a difficult topic to disclose and prove. You don’t have to do it alone.
Get the support you need for your divorce with the experienced attorneys at Cage and Miles.