Monthly Archives: July 2017

Do prior acts of Domestic Violence Eliminate or Diminish the Obligation to pay Spousal Support?

Section 4336 (a) of the California Family Code provides that a court has jurisdiction to award permanent spousal support in long term marriages. As a rule of thumb, long term marriages are those which exceed 10 years. 

I was recently retained by a client who was married 16 years. Hence, that qualifies as a long term marriage. Her soon to be Ex-husband is asking for spousal support. Pursuant to section 4336 (a), she could be ordered to pay permanent spousal support because of the length of their marriage.

However, this woman conveyed to me a history of domestic violence. Said acts of violence, included, but were not limited to, her ex husband breaking her fingers, hitting her and leaving her black and blue, choking her, and punching holes in the wall when he was angry. Needless to say, these incidents left their toll on my client. She has suffered emotional distress, as well as physical abuse.

So, is there anything I can do to persuade a Judge not to award spousal support? Fortunately, the answer is Yes.

Although section 4336 subsection (a) does give California Judges the authority to award permanent spousal support in long term marriages, 4336 subsection (h) states that a history of domestic violence, and resulting emotional distress, shall be taken into account when making an award of spousal support. In other words, a court also has authority to deny spousal support in long term marriages when there is a history of domestic violence.

California Family Code section 4325 provides that when there is a conviction of domestic violence by one spouse against the other, within 5 years of filing for dissolution, there is a rebuttable presumption that the guilty spouse is not entitled to spousal support.

But what does a party do when there has not been a criminal conviction?  Fortunately, California Family code section 4320 ( I ) allows the court to deny an award of spousal support when there is documented evidence of spousal abuse. This section does not require a conviction. Though, of course, if there were a conviction, that would be helpful.

Therefore, when there has not been a conviction, the key is to have documented evidence of domestic violence. This evidence could consist of a number of things. Some examples would be  police reports, pictures, applications for restraining orders that were filed within the last five years, witness statements, and written declarations by the victim spouse.  There is no set definition for “documented evidence.” So anything that makes sense and adequately presents the evidence should suffice.