No-Fault Divorce in California: Does Fault Play a Role in Domestic Violence Cases?

You may have heard that California has “no-fault divorce.” As a survivor of domestic violence, you may wonder if your spouse’s conduct will play any role in the court’s award of spousal support, child custody, or division of property. The good news is that California law protects survivors of domestic violence and abuse, even in family court.

California is a No-Fault Divorce State

You don’t have to prove that either spouse is to blame to get a divorce. California is a no-fault state for divorce. You don’t have to demonstrate that he cheated on you or she has a gambling problem. All one spouse in a California divorce needs to prove is that “there are irreconcilable differences which have caused the irremediable breakdown of the marriage.”

In fact, the law for no-fault divorce in California goes one step further. Not only do you not need to prove fault to get divorced, the law says you generally can’t use proof that your spouse is at fault to your advantage in a divorce case.

Domestic Violence Creates an Exception to the Rule of No-Fault Divorce in California

However, there is an exception in cases involving domestic violence or abuse. California recognizes a broad definition of “abuse,” including:

  • Physical abuse
  • Sexual assault
  • Emotional abuse
  • Stalking
  • Harassment
  • Threatening injury
  • Intimidation (including threats connected to immigration status)
  • Isolation
  • Deprivation of basic necessities
  • Monitoring a party’s movements or communications
  • Controlling the other party’s access to economic resources or services

A history of domestic violence changes the way the California family court will look at a variety of issues related to your divorce.

Family Courts and Domestic Violence Restraining Orders

While your divorce is pending, you can file for a domestic violence restraining order, which is essentially a no-contact order, to protect yourself and your children from your spouse. This can restrict their access to firearms and even make your spouse move out of your home.

No-Fault Divorce in California Does Not Award Spousal Support for Abusers

If your spouse had a history of committing domestic abuse against you in the last 5 years, the court will presume they are not entitled to any temporary or permanent spousal support (alimony). A conviction for a violent sexual felony makes that presumption permanent.

Domestic Violence as a Factor for Child Custody and Visitation

There are similar requirements when the Court is considering awarding child custody and visitation. If the court finds that a party seeking custody committed domestic violence against a party, child, sibling, or other party with whom they had a relationship in the last five years, it creates a presumption that he or she should not receive sole or joint physical custody of the child. To overcome this presumption, the abuser must show that they have completed all the batterer’s treatment programs, alcohol and drug counseling, psychological counseling, probation or parole requirements, and any parenting classes ordered by any court and avoided any further acts of domestic violence.a

Domestic Abuse Convictions and Property Division

Once again, when considering the division of property, a California family court judge is allowed to consider domestic violence, even when they would otherwise not consider evidence of fault or misconduct. If that violent act resulted in judgment in a separate civil lawsuit for domestic violence, the family court judge can then adjust the division of community property between the parties to compensate for the survivor’s losses. The court may also award the survivor of domestic violence up to 100% of the community property shares of an abuser’s pension, 401(k) or other retirement account.

Demonstrating Fault When California is a No-Fault State for Divorce

In most areas of California divorce law, bringing domestic violence fault allegations into court requires a criminal conviction first. This includes the nolo contendere pleas that many first-time domestic violence defendants use to protect their criminal record. But many domestic violence survivors never press charges against their abusers. Courts are instructed to consider “all documented evidence” of domestic violence. Still, if there is no conviction on the record, you should work closely with your California divorce attorney to provide that documentation of the abuse so that it can be considered in finalizing your divorce.

At ADZ Law, LLP, our divorce attorneys understand how difficult it can be to escape domestic abuse. We help the victims of domestic violence to develop safety planning and get the protective orders they need to safely leave an abusive partner. Then we can use those orders, any criminal convictions, and other documentation of abuse to shield you and your children from further harm after the divorce is final. We invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help you when your spouse’s violence is at fault for your divorce.