Not all relationships are happy, well balanced unions. There may be issues of domestic violence involving either spouse. The end result is that it leaves not only a criminal record, if the perpetrator is convicted, but may also affect other situations in the future.
An example of domestic violence affecting something in the future would be a male spouse, prior to marriage, being involved in an incident with his partner in which she brandished a firearm at him. Although the wife was arrested and charged, contrary to the uncooperative man’s direct wishes, she was ultimately granted probation on a lesser charge. The case was dismissed when she completed probation.
About a decade later, the marriage disintegrated and the husband wishes to avoid paying temporary spousal support because of the wife’s previous history of violence. Is that possible?
The ruling legislation for situations such as this is the California Family Code – specifically sections 3600, 4320(l)(m) and section 4325. As with any stated legislation, there are often exceptions or legal work-arounds. For instance, the most applicable section in this example is section 4325, which is a rebuttable “presumption” that permanent or temporary alimony for an abusive spouse should not be ordered in the presence of a conviction within a five year period before filing for a divorce.
In the example above, the couple were not married when the violence occurred and the incident took place longer than five years ago – two points that may possibly go against the man being able to avoid paying temporary spousal support. Whether or not there is a conviction for spousal battery is irrelevant, as it can be any lesser-included defense. What is relevant are the facts of the case, not the plea.
The more relevant applicable section is Family Code section 4320(l), which experienced divorce attorneys argue in court. This subsection says the courts “must” hear evidence of domestic violence between the “parties” (the legislation does not specifically say spouses). Thus, section 3600 of the California Family Code, applies to temporary spousal support and it states courts may order any amount of spousal support necessary that is consistent with either section 4320(l) and/or (m) or section 4325.
The take away in this is that the courts may make spousal support orders consistent with either or both relevant section/subsections, that there is no mandated five year time bar in section 4320 and that domestic violence may be used as a defense to judgment or temporary orders for spousal support.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
