Divorce When There Is Domestic Violence Involved

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmDomestic abuse is one of the most common reasons for a divorce. It involves mistreatment of one partner by the other, generally bordering towards violence. Physically harming a person (sexual assault, hitting etc.) or mental and emotional harassment (causing fear with threats of abuse, isolating partner from other people, stalking etc.) are all forms of domestic abuse. Even though one usually hears of women getting exploited in a relationship in such a manner, it isn’t necessarily true in all cases. Men can be victims of domestic abuse as well, and bringing their cases to light is a lot more difficult, since a lot of people aren’t willing to believe their side of the story. Also, in a lot of these cases, children are forcefully involved in the violence, and they may grow up to become abusive.

Not the easiest thing to do

Wanting to leave an abusive relationship may seem like the most obvious choice, but people who have faced such situations, know that it isn’t always the easiest thing to do. People who have already been using violence may start hurting their partner even more, using threats and more violence to keep them from trying to run off. In some cases they may resort to emotional blackmailing when talks about a separation comes up.

Get in touch with someone who can help

No matter how tough it is though, in such situations it is best to get in touch with first a policeman and then a lawyer, immediately. A temporary restraining order can be issued against the abusive partner that prohibits him or her from coming into contact with their spouse. This way, the person can be assured safety and protection. Criminal charges can be filed against the abuser for any harassment, but the police need to be notified as soon as possible.  A detailed complaint should be prepared, stating clear facts of the marriage and the violence involved. If the abuse has been going on for a long time, the case will be more strongly presented in court. A thorough understanding of the domestic violence act can help people understand what can be expected from a court ruling. Though there are a lot of protective acts included, there are still a few limitations that one may need to keep in mind, in order to take full advantage of the law.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Seeking Temporary Restraining Orders During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmNot all divorces are an amicable parting of ways. In fact, in cases where domestic abuse either physical or emotional is involved, things can be far from pretty. Sometimes, if one spouse – usually the woman – feels that her life is endangered by continuing to live in the same home as her estranged spouse or even interact with him on any level, she may file a TRO or temporary restraining order. Here’s what you need to know about temporary restraining orders during divorce.

What does a temporary restraining order achieve?

For a victim of domestic abuse, the temporary restraining order can mean the difference between life and death. In spite of filing for a divorce,  the abusive spouse may not let up on the harassment of their soon to be ex. In fact, the very act of serving divorce papers to the abusive party may trigger another fit of rage. And there’s nothing more dangerous than a spurned lover, or in this case – spouse.

Physical abuse or emotional abuse and the TRO

A TRO applies not just to cases involving physical abuse, but also for emotional or mental abuse. Courts recognize that this can be just as damaging, and is usually sympathetic, especially when there are children involved. While it may be easier to prove instances of physical abuse by having a medical doctor or neighbor provide testimony or providing photographic evidence, you can have a similar testimony also provided by similar upstanding community members that know you and your spouse well and may have witnessed such instances of mental or emotional abuse.

How do you get a temporary restraining order?

To get a TRO, you will need to file a motion in court for approval by a judge. Once he or she signs off on the temporary restraining order, you are protected by law from being approached by your abusive partner. A TRO goes by various names including an order of protection, or an injunction.

It helps you by forcing your abusive ex to stay away from you once they are notified of the TRO. Usually, this will mean they are excluded from contacting you, your kids and other members of your immediate family, or otherwise as dictated by the terms of the TRO. It will also list out locations that are deemed taboo for the person against whom the TRO is issued. This may include your home, your place of work, the kids schools, your car, the day care facility your kids go to and so on. Violation of such an order can result in the abuser being put behind bars, should you approach the court or the cops to enforce the TRO.  Remember, if you are a victim of abuse in your marriage, you don’t necessarily have to have a separate domestic violence case in court to get a TRO.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Say No to Abuse and Yes to Divorce!

Posted by: Gerald A. Maggio, Esq.

domestic violence attorneys Orange County; The Maggio Law FirmDomestic abuse though disliked and discouraged by the society at large continues to prevail in some limited sections of society even today. In our practice, we come across a number of cases where abuse is one of the primary or even the only reason that a spouse wants to divorce their spouse. This is something that needs to be encouraged more than it is being encouraged in this day and age.

Reluctance & Feeling Helpless

The number of people who go through domestic abuse in their marriage and those that file for divorce on this basis are incomparable. Only a handful of people that should opt out of their marriages because of domestic violence actually do it. This can be attributed to the social stigma that continues to be felt in some sections with regards to a divorce, and otherwise because the abused feel helpless to do anything.

Decisions can be taken and they can be wrong. It is not a must for each and every decision taken by you to be absolutely correct. This needs to be realized. There are chances of discrepancies and if you think that a wrong decision has been made that is unable to give you what you want, you need to opt out of it.

If you have chosen to get married to someone and the marriage is resulting in abuse from your spouse, you need to come to the realization that you cannot continue to live under those conditions.

There can be many types of abuse and if you are subjected to any, you should stand for your rights and if your spouse is unable to stop such acts you should go for a divorce.

Types of Abuse

Abuse in a marriage can be categorized broadly into 3 categories at the very least.

The first is physical abuse which involves physically assaulting, beating or hurting you in any way that is not permitted by you. Physical abuse if looked down upon by the courts and can not only result in Orange county divorce proceedings, but the spouse initiating the abuse can be made subject to criminal proceedings.

The second type of abuse can be emotional or mental abuse, where maybe not your body, but your mind, is tortured. Mental and emotional abuse can take many forms and there are several ways that these can be conducted. While these are typically harder to prove, they will also count against the spouse in divorce case.

The last and most important category is child abuse. If the other parent is abusing the child in any way, you need to step up and for the best interest of your child and yourself you need to opt out of the marriage and go for an Orange County divorce. The courts look to protect children and will deal with parents involved in child abuse harshly.

If you suffer from any sort of abuse in your marriage, contact us at The Maggio Law Firm today to learn what your rights, including the filing of a restraining order, are.

Types of Restraining Orders in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmThere are many reasons that people go through a divorce. If you are a victim of domestic violence, you can look at divorce as a means of protection from your spouse. The abusing spouse needs to be dealt with, and you need to take action right away. The faster you act, the better the chance of ensuring the protection of you and your family.

If you think you are in grave danger, the first thing you should do right now is contact law enforcement right away. If, however, the problem is a persistent one but not one that poses immediate danger, you should, along with your Orange County divorce, file for a restraining order.

There are two main types of restraining orders in Orange County family law to protect the victims and families or those victims from abusive spouse and individuals.

Restraining Order Types

·         EPO (Emergency Protective Order)

An emergency protective order is a temporary order issued in criminal domestic violence situations for restraining an individual away from a person or a group of people, and is often part of a domestic violence incident by one spouse against another that led to an arrest by the police. These orders are specially issued by the law enforcement agencies and will be valid for no more than five days of issuance.  There are a number of victims that this restraining order applies to, such as:

  • Domestic Violence
  • Stalking
  • Child Abduction
  • Child Abuse

·         DVRO or TRO (Domestic Violence Temporary Restraining Order)

The domestic violence temporary restraining order is the primary type of restraining order that are made to apply specifically in cases of domestic violence whether it be for an Orange County divorce or otherwise. The emergency order is put in place by an Orange County family law judge for a total of 21 days and a hearing on the merits and facts is required within 21 days to determine if a more permanent restraining order of 1-5 years should be issued by the court.

If you have been subjected to abuse at the hand of your spouse, now is the time to stand up and protect yourself through a divorce and these restraining orders.

An Abusive Husband And Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmAbuse of any kind is bad and against the law, such as when husbands physically abuse their wives (and vice versa to a lesser extent).

If you add abuse to a bad marriage, the situation goes from difficult to dire. For a wife, divorcing an abusive husband can be difficult, because you don’t know how a violent man would react.  However, if the abusive husband is putting the well-being and the life of the wife and children in jeopardy, divorce may pretty much be the only solution.

Divorcing an abusive husband becomes difficult in cases where the marriage has been going on for a long time, and the husbands are the only providers of the family.

What is Abuse in Terms of Family Law?

In the context of family law, the word abuse has a broader meaning. Abuse is when someone recklessly or intentionally tries to cause or is successful in causing:

  • Sexual assault
  • Injury to any part of the body
  • Causing the person to live with a serious threat of grievous bodily harm or damage at any stage
  • Engaging in any kind of behavior that is defined in the California Family Code section 6320, which defines such behavior as, threatening, battering, striking, stalking, harassing, etc.

Divorcing an Abusive Husband

The key to divorcing a husband who has a history of frequent abuse is to act immediately and decisively. The law in California protects the spouses from any kind of abuse from their other half and you should try and use those avenues of the law to your advantage.

One of the first and most immediate actions that need to be taken is to seek an immediate restraining order in the family law court. Sometimes though, owing to the situation of the couple or any other legal issues, restraining orders might be unavailable. In such cases, you should ask your divorce lawyer to ask the court for protective orders that limit and regulate the contact between the two spouses. In addition to this point though, there is also a need for more practical steps on the side of the wife, where she needs to move out of the house or away from the abusive husband.

What To Do If You Have Been Falsely Accused Of Child Abuse In Your Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmDivorce proceedings can sometimes turn out to be full blown affairs of emotions and accusations. One such accusation that should be used with care but is used rather sparingly is that of child abuse. Child Abuse is a serious accusation and can shatter even the strongest reputation to pieces. Making an allegation of such sorts is supposedly easy and yet its affects can be far reaching on the spouse and Orange County divorce proceedings.

Most of these accusations are used when the child is an infant or unable to understand the situation and comprehend his or her viewpoint. The Orange County family law court has always encouraged both the parents to stay in contact with the child but have one exception to that rule. If the parent is accused of abusing or neglecting his child voluntarily, he or she can be preventing from contact with the child for an extended period of time and often supervised.

This is what you get if you actually abused your child, but what if the claims were false? What happens to the parent that makes false accusations regarding child abuse in courts?

Curtailed or Supervised Visitation

In case of the court finding one spouse to have lied in the accusation, the court can order a punishment that can affect the falsely accusing parent’s visitation rights. They can be ordered to only have supervised and monitored visitations, or the courts can even curtail the amount of visitation time and number of visits to make sure they are brought to justice for tarnishing someone’s reputation.

Monetary Sanctions

False accusations of child abuse in Orange County divorce cases lead not only to punishments by the courts on visitation rights but it can also involve financial fines. The court can order and impose financial sanction on the accusing parent to pay a lump sum amount to the other parent. This lump sum amount’s sanction; however, cannot exceed the amount of money the accused spent on his/her family lawyer’s fees and other procedural costs to defend him/her against the false accusations.

To claim these sanctions under California Family Code 3027.1, there is no need to show the falsity of the claim in court. The falsely accused parent only has to show that he/she prevailed in the court where this claim was originally made.

Understanding How To Deal with A Narcissistic Spouse During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange-County-divorce-attorneys; The Maggio Law FirmAre you considering divorcing your narcissist spouse? If you are, it is very likely that you have already given their reaction to the divorce a lot of thought. This shows how difficult it can be to divorce a narcissist.

Who is a Narcissist? Narcissists are people who are love themselves more than anyone else in the world. Being self-centered, self-applauding and self-absorbed are all indications of being a narcissist. These people are known to be control freaks, likely to entertain and agree on ideas and perspectives put forward by themselves. Here is some input as to narcissists react to divorce:

Reaction Of A Narcissist To Divorce – Domestic Violence and Child Abuse

If you have had a history of domestic violence or child abuse in your family, it is likely that your narcissist spouse will use the same tactics in his/her reaction to your decision regarding the divorce. They like to manipulate situations to their advantage and tend to get violent when things don’t go their way.  So protect yourself from such situations if you sense such a reaction from your spouse, including seeking legal assistance, to ensure the safety of you and your children.

Reaction Of A Narcissist To Divorce – Emotional Abuse

Here are examples of what a narcissist can threaten in a divorce:

“You and your children will be on the streets if you go ahead with this divorce.”

“I will leave work and you’ll be paying my support.”

“I am going to stop you from seeing my kids.”

“I will spend each and every penny I have to fight you.”

If these threats sound like something your spouse would say, you should get legal help as soon as possible. These people are control freaks – the slightest indication of losing control can make them feel insecure and they won’t allow that to happen. When they are told about a divorce which is a significant life-altering decision, threats like these are common. While domestic violence is more common in a male narcissist, emotional abuse is likely to be used by both sexes with equal vigor.

Reaction Of A Narcissist To Divorce – Financial Abuse

This is another common way to react by not only narcissists but any person who wants to teach his or her spouse a lesson.  Again, being self-possessed, narcissists can opt to financial abuse as a means to keep the control of their life in their own hand and stop you from altering it altogether. They can resort to the following steps:

  • Hiding their assets
  • Refusing to pay child support or alimony
  • Driving up the fees of the litigation by delaying tactics

These are some of the ways we described that narcissist’s handle divorce. The key to your handling of such situations is patience, perseverance, and having legal counsel that can protect your rights while avoiding antagonizing of your narcissist spouse in the divorce case.  Each divorce case is different in some way and needs to be handled based on the circumstances of the case, and that can be affected by the type of parties involved in the divorce.

Domestic Violence And Its Effect On Child Custody

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange County attorneys; The Maggio Law FirmDomestic violence has been an unfortunate reality that is still common in Orange County and other places in the United States.  Domestic violence is one of the leading reasons for Orange County divorce and paternity cases.

Does domestic violence being proven mean that the custody will remain the same? Will it result in the restrained parent staying away from the other parent only? Most importantly, will the custody be altered? The answer to all these questions is most usually “no.” There are substantial implications of domestic violence on child custody.

In California courts, if it is found that the parent seeking custody of a child – either sole or joint – has committed domestic violence against either the child’s siblings, the child himself, or against the other parent, in the previous five years pursuant to Family Code section 3044, the courts presume that the parent guilty of this offense should not be entitled to joint or sole custody because it is presumed to not be in the child’s best interests.

This presumption has far-reaching effects and implications.  The court will believe their presumption to be true unless proven otherwise, by rebutting the legal presumption under Family Code 3044.  The burden of rebutting the legal presumption is on the parent who then has to prove why he or she is entitled to get sole or joint custody.

The court has to consider many factors after a finding of domestic violence to determine what the appropriate child custody orders should be. Some of the factors are as follows:

  1. Where does the child’s best interest lie?
  2. Did the parent complete a batterer’s program which meets the criteria of the California Penal Code?
  3. Did the parent complete a parenting class which the family court deemed necessary?
  4. Did the parent follow the restraining orders issued?
  5. Was there further domestic violence?

The issue of domestic violence and the implications of domestic violence on child custody are substantial and can affect child custody for years.  Therefore, if you have been the victim of domestic violence or you have been wrongfully accused of domestic violence, you must seek the services of a family law attorney familiar with these issues as soon as such incidents of domestic violence occur.  What you do in the very beginning of your case can have huge consequences as to how your case turns out.

Can Temporary Spousal Support be Awarded if Domestic Violence is Present?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmNot 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.

How To Protect Your Kids When You Are A Victim Of Domestic Violence

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmIf you are in an abusive relationship and have children, it is very important to distance yourself and them from your abusive partner. Distancing yourself through divorce may very well be your best option.  Even though the thought may have crossed your mind several times, it is likely time to take action. Get the courage to file for divorce, but before you do, take these steps to protect your kids and yourself:

1.     Report Abuse to the Police and Maintain Records

If your partner is violent, keep records of every incident involving him (or her) stored in a secret place. Abuse can be in the form of physical or emotional, so either record or take pictures to exhibit in court. Also, write down the time, date, and place with the description of the altercation between you and your partner. The records will come in handy when you are fighting for custody of your kids, especially if you did not previously report such incidents to the police.  Do not hesitate to call the police if you have been physically abused!

2.     Have a Safe Residence to Go To And Then File For a Restraining Order

After you have filed for divorce, you need a place where you can take your kids at least temporarily until you can take further legal action.  Consider filing a restraining order to protect you and your children, which can prevent your partner from going to your home and the children’s schools.  In a restraining order, you can request exclusive use, possession and control of the marital residence, with a kick-out order requiring your partner to vacate the marital residence.  Such orders are then enforceable by the police and the court.

3.     Seek Sole Custody of Your Children Under the Restraining Order

If your partner becomes too abusive towards you or your kids, don’t wait to file for custody; do it immediately under the request for a restraining order. The court can grant you with such restraining orders that can give you custody of your kids and orders your partner to stay away at the same time.

4.     Seek Control of Visitation Rights

If your partner has not abused the kids, he/she may be permitted to see them. However, if you are still concerned, you can ask the judge for supervised visits if they are appropriate under the circumstances of your case.  If you don’t want the kids to see their mom/dad at their residence, you can ask them to agree to meet them in public such as a restaurant, park, or even the police station.

5.     Get Legal Assistance

People struggling with emotional and physical abuse need to get out of the relationship fast.  Don’t wait to get legal help.  Seek legal assistance at the first signs of abuse. The safety of your child is what’s important here.  Consult a divorce firm to help you. If you don’t have enough money, you can always go to a shelter. The shelter will find you the legal help you need.

 
No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.