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.  

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.

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.

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 Explanation of Orange County Child Custody Investigations

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIt has long been established that the issue of children in a divorce is integral. Parents consider their children to be their most valued asset and therefore, both the spouses are likely to fight it out in court fiercely to make sure they end up having the possession of their most prized assets. The courts, however, have to base their decisions in family law child custody cases on the best interest of the child. Sometimes, it is harder for the judge to be able to evaluate the claims of both the parents in terms of custodial suitability and hence, they can order a child custody investigation to clear the facts and the picture.

Parents that go through these investigations are likely to find themselves under considerable amounts of stress and confusion. Primarily, child custody investigations are about the accusations leveled by one of the spouses against the other with regards to:

  • Child neglect
  • Substance abuse
  • Sexual/physical child abuse
  • Other concerns in relation to the safety and security of the child

The Purpose of Investigations

The use of child custody investigations is done by the Orange County family law court personnel to be able to have a clearer and more objective view of the facts. These facts and clearing of accusations and perceptions are likely to increase the chances of decision by the court that is truly in the child’s best interest. These investigations are done by the internal investigator of the court and therefore, are completely different to the other child custody evaluations done under Evidence Code section 730.

Are Child Custody Investigations Helpful?

This is one of the most common questions that have been asked with regards to child custody investigation. Typically, in Orange County court proceedings, the pattern is in the ‘he said, she said’ style, where arguments seem to be flowing through and lawyers arguing over the actions taken by either of the spouses. All of this is done without any regard to the objective representation of facts and figures.

Child custody investigations, on the other hand, involve a whole host of procedures that are intended to provide the facts objectively at the end of the process. This can include processes such as:

  • Interview of the witnesses and the parents
  • Thorough reviewing of the important documents that include videos, photographs and medical records and other information that can prove decisive in the fighting of the case.

When the Investigation is Complete?

Once the child custody investigation is complete, the investigator is likely to submit a formal report to the Orange County family law court, which has all the necessary facts of the case in an objectively represented form. The court can sometimes ask the investigator for the live testimony of the facts provided.  It is important to note that these proceedings owing to the involvement of the children are closed and only parties and their lawyers are allowed to attend such proceedings.

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.

 
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.