Dealing With Abuse During Marriage

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmA couple goes through several ups and downs in their relationship when a marriage becomes rocky and is a troubled one. Contrary to what many people would like to believe, some key causes of divorces are infidelity, domestic violence, and emotional or physical violence. There can be different forms of abusive behavior such as financial, physical or emotional. Such behavior can have a negative impact on the stability of a marriage while the abused partner may go through a disturbed mental state. If you are a woman, read on to know the different forms of abusive behavior and ways of handling them.

Verbal abuse 

When your husband uses filthy language and tries to demean you or screams at you frequently or treats you shabbily in the presence of his family members or friends, they are clear symptoms of you being verbally abused. It is high time when both of you should sit together when you should tell him to stop such demeaning treatment immediately. You should let him know that such behavior is affecting your relationship deeply.

Physical abuse or domestic violence 

Such abusive behaviors are usually meted out when your partner tries to dominate and control you. There is clearly an anger issue with your husband and so he is trying to use violence as a tool to control you and resolve matters according to his terms. Your husband will even try threatening you when in his abusive best and try to put you down. Such behavior can depress you and can even demolish your self-confidence. In case you are subjected to acts of domestic violence by your spouse, your first and most important step would be to identify it as early as possible. You should never tolerate such acts and take corrective measures to remain safe. It is crucial to communicate what is happening with you and involve a reputable marriage counselor when you feel such issues can be sorted out through therapy. However, if nothing improves, then it is better to end your marriage at the first available opportunity. After all, every woman should respect her sanity and worth.

Financial of economic abuse 

Keeping a close tab on every penny that you spend, not allowing you to have a separate bank account, forcing you to make certain career options and forcing families so that you are unable to pursue your job are some of the examples of going through a financially abusive relationship or marriage. It is a major concern for all those women who depend on their spouses financially.

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.  

What To Know About Restraining Orders

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmA domestic violence restraining order is described as a court order which assists to protect individuals from threats of abuse or any abuse from a person who is a close relation. You can request a domestic violence restraining order in case a person has threatened to abuse or even abused you. Remember the law states that you and that person must share a close relationship. This is applicable if you are a registered domestic partner or married or divorced or separated. It is also valid if you used to date the person or dating that individual even now. You two could live together in the present or in the past. The person could be one parent of your child or a closely related individual like a brother, in-law, grandmother and grandfather.

Filing orders

In case you are one of the parents and the person being abused is your child, you will be within your rights to file the restraining order in-lieu of the child.  There can be instances when people battered by domestic violence does not meet the requirements of domestic violence restraining order. In such cases, it is okay to request a civil harassment restraining order. This order can be applied on neighbors, coworkers and distant family members. If the person being abused is aged 65 or older, or between the ages of 18 years and 64 years, but a dependent adult, then the elder or dependent adult abuse restraining order can be applied. An employer can protect an employee in the office through workplace violence restraining order. This will protect the said employee from stalking or violence perpetrated by another person. If you are unsure of what restraining order you should get, consult a lawyer.

Function of restraining orders

A restraining order is an order from the court. It can instruct the person who has been restrained to not visit you or even go near you. That person will be barred from seeing your children, relatives and others who stays in your house. He or she will be ordered to stay away from the children’s schools.

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.  

Do’s And Don’ts of Dealing With Abused Children Of Divorced Parents

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmMore than often, children end up becoming victims of divorce. And sometimes, they are the reason why parents get divorced. The latter is common during child abuse cases. Child abuse includes physical, psychological and sexual harm inflicted on the child. Child neglect and abuse is a major ground for divorce and most states including California award custody to the other parent without much pressure. However, once the child goes back to the caregiver, there are certain do’s and don’ts to follow while dealing with them.

Do’s

First and foremost, get your child(ren) individual therapist with a therapist licensed in your state.

Make some organizational planning and re-structuring within the house without making it emotional. Involve the children while you’re making the plans to make them feel that everything is normal around them. Ask for votes and opinions and make them participate as much as you can. But don’t put too much responsibility on them.

Abused children show signs of depression and sadness but some kids can act in the opposite way. If they show unruly behavior, teach them how to behave and this can be done in a fun and creative manner.

From time to time, talk to them about the changes in the house and why the changes are taking place. It will increase communication and help foster a positive relation between you and your children.

Don’ts

Try to avoid any sense of fear or anger around them because it might lead to depression. Even if they are old enough to understand such behavior, any negative emotion can have bad effects on their psyche.

Don’t try to go into a new relationship when your kids are still trying to cope up with the situation. It becomes very confusing for them to adjust around new people especially when they have gone through a bad experience.

Avoid any talk about divorce or the abusive parent in front of your kids. Don’t even mention their name.

Don’t make complicated and philosophical talks with your kids. Talk to them as any other parent would with their children.

Conclusion

Children are tough to deal with when parents undergo a divorce. Abused kids even more because of the trauma they go through. While dealing with such kids, it’s better to keep things as normal as possible. Create activities and allow your kids to become a part of it. Avoid negative talks or anything that has to do with either the divorce or the abusive parent.

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.  

Can Spouses Convicted Of Domestic Violence Get Alimony?

Posted by: Gerald A. Maggio, Esq.

restraining orders Orange County; The Maggio Law FirmDomestic violence is an unpleasant subject and has plagued the lives of many couples. The number of domestic violence cases are more than that which get reported every year. Domestic violence is often one of the grounds on which one spouse seeks divorce. In California, domestic violence can mean many different things and you should carefully read through the California law before proceeding with the case.

Domestic violence in California

California is a “no-fault” state but in certain cases like domestic violence fault is a factor. In California, fault is thoroughly examined when spousal supports are determined in a domestic violence case.

California law states that after divorce the higher earner must support the lower earner. But in domestic violence cases, this law can be overlooked. For example, if domestic violence charges are against a spouse who earns lower then, after divorce, the other spouse need to provide spousal support.

California Family Code section 4323 clearly states that spousal support won’t be given if a spouse is charged and found guilty of domestic violence. In a standard divorce, the low-earner receives spousal support unless he/she is charged with domestic violence. If he/she is found guilty then any monetary compensation or other help will get terminated. One issue is that the marriage must have lasted for at least five years after which the rule stands true. The law is found in some of the states and provides a helping hand to the victims of domestic violence.

Examination by courts

Any domestic violence that has been documented will be examined thoroughly by trial courts. The decision will determine whether spousal support will be provided or not. Trial courts will also consider emotional distress, history of convictions and other problems which might be useful.

In California, domestic violence includes a wide range of problems. One of them is one spouse disrupting the peace of another. Domestic violence in other states might be only about physical assaults but not in California. Domestic violence is a serious offence in California and even the lightest change in behavior can lead to domestic violence.

False allegations

Can domestic violence be misused by someone? This question can be best answered by a law expert or one who has had extensive experience in dealing with such issues. The judge needs to look at all the evidence provided and after carefully going through the evidence, it will take its decision.

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.  

Divorcing A Physically Abusive Spouse

Posted by: Gerald A. Maggio, Esq.

domestic violence attorneys Orange County; The Maggio Law FirmObtaining a divorce from a physically abusive spouse can be an extremely difficult affair for those on the receiving end. You need courage, sacrifice, and strong legal representation. It also needs a willing mind to navigate through challenging circumstances for a better life both for the spouse and children. It is extremely difficult to divorce an abusive husband in marriages that have lasted a long time. This is because the husband generally in these kinds of cases control the household finances.

Not a simple process

A few people will advise you to simply walk away from a life of hell. Do not listen to them. Your pain will be decipherable to only those who themselves have felt the pain. At the Maggio Law Firm, we know exactly what you are going through. We have in-depth knowledge of such cases and have successfully concluded the same in our clients’ favor.

Defining abuse under California law

Abuse is a broad term. It is inclusive of attempting to cause or intentionally causing bodily injury, placing persons in a reasonable apprehension of any imminent or immediate mortal bodily injury or engaging in any behavior as described by section 6320 of the Family Code. This code includes molesting, striking, threatening, battering, telephoning, attacking, stalking, sexually assaulting and harassing as per Section 653m of Penal Code and destruction of personal property, contacting either indirectly or directly, through mail or any other medium, or coming within a particular distance, or disturbing the other party’s peace and as per the court’s discretion, other named household or family members.

Situational domestic violence

Family law lawyers and judges use the situational domestic violence term when they refer to a domestic violence which is a component of a one off incident and not pattern of abuse. It is frequently linked with external factors which result in an usually non-abusive husband to behave badly with his children or his wife. A number of circumstances could result in such an outcome. However, in a majority of cases, these are caused by wife’s infidelity, when husband’s infidelity has been discovered, or the husband addicted to alcohol or drugs or even the decision of the wife to leave husband and to file for divorce which subsequently angers the husband.

Handling situational domestic violence

These kinds of problems are best handled by applying for domestic violence restraining order. The wife, with her lawyer’s assistance, requests the court for both permanent and temporary restraining orders.

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.  

How Restraining Orders Can Protect You Against Violence

Posted by: Gerald A. Maggio, Esq.

restraining orders Orange County; The Maggio Law FirmA court of law has the right to impose a restraining order against an abusive individual who has been established as a physical mental or sexual threat to another individual. There are several reported cases of domestic violence and child abuse which involve violent actions of harassment, sexual abuse, stalking and threatening from the abusive partner. The victim who receives the restraining order is termed as the protected person and the abusive individual is referred to as the restrained person. In some cases, where the abusive individual poses a threat to more than one persons of a family, the restraining order will include the other members on the protected persons list as well.

Usually a restraining order that stems from an event of a spousal domestic violence or abuse aims at assisting the protected partner from imminent threat and danger in several ways.

Personal Conduct restraining orders 

The personal conduct restraining order aims at preventing threatening acts against all the individuals named under the protected persons list. The abusive individual is prohibited to indulge in several activities such as contacting, messaging, calling, attacking, striking, stalking, threatening, sexually assaulting, destroying private property, harassing or disturbing the harmony and peace of the protected persons in any way.

Stay Away restraining orders 

The stay away orders stipulate that the restrained person is obligated to keep at a certain distance from the protected person or his house, workplace, children’s school, daycare, vehicle and other places that he or she visits.

Residence Exclusion restraining orders also known as move out or kick out orders 

In cases involving extreme domestic violence or child abuse, the court of law may order the restrained person to move out of the protected person’s residence along with his clothes and personal items, and stay someplace else until the next court hearing takes place.

Even if you have not yet been subjected to violence and abuse, you may still request a restraining order against a closely related abusive individual. There are several cases wherein a married partner, a dating partner, a divorced individual, a parent or a sibling may report an act of domestic violence against another member of the family and apply for a restraining order against the acting individual. Children above the age of 12 who have been subjected to some kind of physical, mental or sexual abuse from their parent can themselves request a restraining order from the court of law.

If you or a close relative has been subjected to some kind of domestic violence or abuse, you should immediately report the incident to the police and request a restraining order from the court of law to prevent any further damage to you and yours.

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.  

Understanding Supervised Visitation

Posted by: Gerald A. Maggio, Esq.

child custody attorneys in Orange CountyThe State of California stipulates that all child custody related arrangements with reference to parental divorce cases would incorporate the best interest of the child. As per the specific situation, the court of law will decide a settlement which would imply that either both or one of the parents will be granted the shared or single custody of the child respectively. In addition to the child custody, the judge may decide the visitation arrangements for the child which would order the child to have contact with one parent only in the presence of neutral third party. The aforementioned arrangement is termed as supervised visitation. In such a settlement, the court has the right to specify the duration and time of visitation. In some cases, the judge might further allot the third party supervision to specific persons and list out the places where the visitation can take place.

When does a court grant supervised visitation?

There are several cases wherein a court will require the parent to carry out supervised visitation with their child, such as:

  • In cases where a parent would like to address some specific issues with the child
  • In order to recreate a bonding with a long absent parent
  • To facilitate an introduction between the parent and child in cases wherein there was a nonexistent relationship between the two.
  • In cases wherein there is a history of domestic violence or physical abuse
  • In cases where there is a threat of parental abduction

Who is a supervised visitation provider?

A supervised visitation provider can be anyone ranging from a neutral family member, a friend or even a professional. It is the provider’s duty to oversee all the visitations cautiously and ensure that all the separate parties involved in the process are kept safe and free of any harm. The provider is obliged to stay around during all the visits and also keep a close track of what is being discussed and how the child is responding to it. Since it is his job to ensure everything goes on smoothly for the child, the provider is supposed to report the parent’s misbehavior or child abuse to the court. He further has the right to interrupt or even put an end to the visit if required.

The supervised visitation providers may be broadly classified into two categories, namely non-professional and professional providers. While non-professional providers are somewhat related to your family or friend circle and are not paid, the professional providers charge a fee for their services.

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.  

The Impact Of Domestic Violence On Child Custody Cases

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange County attorneys; The Maggio Law FirmThe child custody and visitation laws are separately dealt with in divorce lawsuits involving child abuse or domestic violence. It is the duty of the judge to establish whether there is a genuine case of any kind of physical or mental abuse or not. If yes, the court of law must follow specific rules and guidelines to reach a final verdict in terms of custody and visitation rights of the parents involved.

What is regarded as domestic violence by the State of California? 

Many times, the victims of domestic abuse end up thinking that they have not been subjected to any violence unless it is causing any physical harm to them. However, the State of California defines the conditions wherein an act would be considered domestic violence by the court of law such as:

  • Subjecting the victim to intentional bodily harm or injury
  • Sexual assault
  • Scaring the victim to have a constant fear of being physically harmed by the perpetrator
  • Other actions that might drive a court to issue a restraining order against the acting individual such as physical assault, harassment, stalking or unwanted phone calls

How the court of law decides custody and visitation in cases of domestic violence?

While deciding upon the child custody and visitation rights of a parent, the court is obliged to ensure the best interests of the child at all costs. In the event of a domestic violence being involved in a divorce lawsuit, the judge has the right to limit or block contacts of the child with the abusive parent. Evidence of domestic violence reported by law enforcement, social welfare agencies, child protective services and medical facilities would be acceptable as substantial proof of abuse and will be held against the defendant.

Since the court is obliged to ensure the child’s best interests at all times, exposing him to any kind of domestic violence will be against the policy of his protection. In such cases, the judge might either order supervised visitation for the abusive parent or completely bar overnight visits. In case a protective order has been issued, the judge might stipulate pre determined conditions for the visitation or even entirely deny it.  In cases involving extreme abuse, the court may go to the lengths of ordering a permanent and complete termination of the parental rights of the abusive individual.

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.  

Child Custody in Domestic Violence Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThe definition of domestic abuse is not limited to physical harm; it consists of sexual assault, harassment, threats, stalking, and physical injury. Violence can continue and, in many cases, increase upon separation. Domestic violence allegations play a significant role in child custody hearings. The “moral presumption” in such cases does not allow the abuser to become the primary guardian of the child/children. However, the legal presumption is open to examining the case put forth by both parents.

The top priority of California’s legislature in custody cases is the health, safety, and welfare of the children. When deciding custody the court examines evidence which substantiates the incidence of abuse in the relationship, such as police records, reports from child protective services, or other court orders. If the allegations are proven to be true, then the abusive parent is not awarded either sole or joint custody by means of a “rebuttal presumption” applied by the court pursuant to Family Code section 3044.

The presumption can be overturned if the abusive parent (perpetrator) has successfully completed a batterer’s program, is on probation or parole, has not committed further acts of violence, or proves the children are best-taken care of under them. The victim of abuse can seek a temporary restraining order citing domestic abuse affecting the partner’s custody and visitation rights.

When the children have been subjected to extreme neglect or cruelty, the court has the right to terminate the physical and legal custody of the abusive parent. In such cases, the judgment is permanent and cannot be overturned. The parent loses all rights to their children.

Fabrications are quite common in domestic violence and child custody cases. In the latter, a parent may allege abuse to tip the scales in their favor and gain guardianship of the child. If the accused parent does not contest these allegations then the court will deem them true. It becomes even more difficult if the accused has a history of domestic violence. Therefore, the accused may lose joint child custody or any kind of contact with the children.

Child custody battles take a toll on the parents as well as children involved in them. Whether you are a victim of domestic violence or a concerned parent fighting for the welfare of your children, it is paramount to consider legal aid from a qualified family law attorney. Similarly, if you are at the receiving end of a false accusation of violence which can affect your custody case negatively, you need strong legal assistance to prove your innocence.

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.

 
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