Basics of the Domestic Violence Process in California

Domestic violence is a crime in California. It is a crime to threaten to harm or harm an intimate partner. If found guilty, you will be charged under Penal Code 243(e)(1) "domestic battery" and Penal Code 273.5, "inflicting corporal injury on an intimate partner."

Divorce cases where domestic violence is an issue can be disadvantageous to one party (say they were falsely accused), and may have in impact on child custody, or result in the issuance of a restraining order. These cases are usually complex, and require experienced legal represenation.

Domestic violence and divorce

Domestic violence affects several aspects of divorce;

Spousal Support

Under the California Family Code Section 4325, there is a rebuttable presumption that a person convicted of domestic violence(misdemeanor convictions) within five years of the marriage's dissolution will not be entitled to spousal support. You will also not be ordered to pay attorney fees from your separate property, as is the norm in some cases.

However, if a spouse is convicted of a violent sexual felony or domestic violence felony, you cannot be ordered to pay spousal support. If convicted of attempted murder or solicitation of murder, the abuser will also not get any medical, life, or other insurance from you. The convictions should be within five years of the conviction and of any time on probation, in prison, or on parole.

NOTE: Sometimes, you are wrongly convicted; your spouse may have twisted facts in their favor. If this is the case, the judge will consider the evidence and order the abusive spouse to pay your spousal support.

Child Custody

The court makes custody and visitation decisions based on the best interests of the child. No court will grant joint or sole custody to an abusive parent. When it comes to visitation, the court may or may not grant visitation rights to the abusive spouse. The judge applies a rebuttable presumption that an abusive parent should not have joint or sole custody of their children if it is proven that a parent perpetrated domestic violence against their spouse and/or children within the last five years. In extreme cases, the court will terminate the parental rights of the abusive spouse.

Protecting the family from abusive partners during divorce

The only way to do this is through a restraining order. A domestic violence restraining order is a court order that help protect people from abuse or threats of abuse from someone they have a close relationship with. The typical circumstances that give rise to the issuance of a restraining order are the following.

  1. A person has (or has threatened to) abuse you: AND

  2. You have a close relationship with that person

A close relationship can be defined as any of the following.

- Married or regeistered domestic partners,

- Divorced or separated

- Dating or used to date

- Living together or used to live together

- Parent the same child together, OR

- Closely related (parent, child, brother, sister...)

If you fit the above mentioned criteria, These are the options:

Emergency Protective Order (EPO)

It started right away and can last up to 7 days. An Emergency Protective Order is typically requested by law enforcement that answer a domestic violence call. The order is issued by a judge, who is available 24/7.

Temporary Restraining Order (TRO)

It lasts between 20-25 days until the court hearing date and is requested by the victim. You need to convince the judge that it is for your safety, and if they are convinced, they will give you that restraining order.

"Permanent" Restraining Order - The judge may give a "permanent" restraining order. They usually last up o five years but can be renewed if there is still a need for it.

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