Posted by: Gerald A. Maggio, Esq.
Domestic 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.
Posted by: Gerald A. Maggio, Esq.
There 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
- 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.
Posted by: Gerald A. Maggio, Esq.
Abuse 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.
Posted by: Gerald A. Maggio, Esq.
Divorce 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.
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.
Posted by: Gerald A. Maggio, Esq.
Are 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.
Posted by: Gerald A. Maggio, Esq.
Domestic 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:
- Where does the child’s best interest lie?
- Did the parent complete a batterer’s program which meets the criteria of the California Penal Code?
- Did the parent complete a parenting class which the family court deemed necessary?
- Did the parent follow the restraining orders issued?
- 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.
Posted by: Gerald A. Maggio, Esq.
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.
Posted by: Gerald A. Maggio, Esq.
If 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.
Posted by: Gerald Maggio
Every week police are called to homes where spouses and children are affected by domestic violence. Alternatives to Domestic Violence in Riverside County has seen an increase of victims throughout the state, a need for more donations for their emergency shelter, and kids and spouse’s whose lives are at risk. Their crisis line has received up to 7,000 calls a year from people needing help. October is Domestic Violence prevention month and reminds us as a society that we need to be mindful of the millions of women and men who suffer physical and emotional pain from their intimate partner. Riverside has many resources to help domestic violence victims and perpetrators get back on the path to better life. Alternatives to Domestic Violence, for example, runs the Casa de Paz shelter where victims can have a short-term, stable living environment and get counseling and education services. If a person and their child do not actively seek help and legal action, the domestic violence can turn deadly. Emotional, physical, and other types of abuse often lead to more aggressive forms of abuse. The CDC’s Violence Prevention campaign says that many of the perpetrators have a substance abuse history, carry a weapon, and have a mental health issue. A person can initiate divorce proceedings when this is the best course of action to cut ties with the perpetrator. At the same time, individuals can request a restraining order, ask for custody and child support, and discuss concerns about visitations with the child. California courts want to protect the child and spouse from any further harm. If mediation is ordered by the judge, a spouse can take a support person with them to be there as the child custody and other matters are decided with the ex. In cases where a person does not feel safe, an individual can ask to speak with the mediator separately so that the issues with the abusive ex do not halt the proceedings. The courts will want the perpetrator to undergo counseling to improve their behavior. Perpetrators must comply with the court orders to be able to have monitored visitation or custody in the future. Victims should get legal representation to assist with their divorce and family law matters. Riverside County family law attorney Gerald Maggio is a strong ally for a spouse and their children with domestic violence concerns. Gerald A. Maggio is an Irvine and Riverside County divorce attorney. To learn more about Riverside County divorce lawyer, Gerald A. Maggio, visit Maggiolawfirm.com or call (949) 553-0304.
Posted by: Gerald Maggio
Sadly, one in four women will experience domestic violence during her lifetime. Each year, 1.3 million women will be victims of physical assault, according to the Alternatives to Domestic Violence organization in Riverside, Calif. California’s domestic violence shelters had more hotline calls in 2010, with an average of 5,261 individuals needing their services and support.
The recession has caused financial and marriage stressors to increase, and victims sometimes feel they have no escape route to improve their life. A recent Orange County domestic violence case emphasizes the need for legal counsel when dealing with divorce, child custody and restraining order concerns. Travis C. Unholz, an Orange County sheriff’s deputy, recently pushed his wife to the floor and she hit her head. The couple’s two children were at home during the argument. The wife called the sheriff’s department and they arrested Unholz. He was able to post bail, was charged with domestic violence, but then tried to buy a gun. He asked a friend to help him buy an automatic weapon, survival kit, and call his wife. All these actions violated the bail conditions.
Unholz now is charged with a litany of felony and misdemeanor charges – domestic battery, violation of a protective order and attempted possession of a firearm, sentencing enhancement for crime-bail-crime – and could face six or more years in state prison.
Every victim of domestic violence has the right to seek legal guidance and court protections to overcome a traumatic situation. If there are children involved, a restraining order can be requested to protect you and the children. Custody, visitation and child support orders can be requested at the same time, as well.
If you have been a victim of domestic violence, you have a right to look to the court for protection. There are several different types of restraining orders that can provide domestic violence victims with this kind of protection. If a judge wants a mediation to decide on these matters, an individual will want to bring their divorce lawyer and a support person. Sometimes it is even best to meet with the mediator separately, depending on what type of abuse has occurred.
Current California statutes call for custody to be granted in line with the best interests of the child. Domestic violence that has been done in the previous five years does not bode well for the perpetrating parent seeking any type of custody. Only if the perpetrator can provide sufficient evidence that he has completed a batterer’s treatment program, an alcohol or drug abuse counseling program, parenting classes, and complied with a restraining order, will the courts perhaps consider joint custody.
One of the most prominent divorce and family law offices, The Maggio Law Firm in Riverside and Irvine, Calif., is skilled in representing a client’s and child’s best interests. Their firm will ensure that all of the proper documents are filed, any questions that a judge might ask will be done so in a quick, proactive manner, and will assist with any unusual circumstances that might come up in the divorce and child custody hearings.
Gerald Maggio, their lead Riverside County domestic violence attorney, recommends individuals get help early on who are being abused. He represents domestic violence victims that are married, have domestic partnerships, in dating relationships, and same-sex partnerships. Their exceptional legal counsel will aggressively advocate for an individual and child’s legal and human rights.
For more information or to schedule a consultation, contact Orange Country divorce lawyer, Gerald A. Maggio, by visiting Maggiolawfirm.com or calling (949) 553-0304.