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.  

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.  

Understanding The Basics of California Alimony Laws

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony aka Spousal Support is perhaps the trickiest element of a divorce. It goes without saying that the one who has to pay does not want to pay, and the one who has to be paid wants to be paid higher. Despite the guidance of the existing legislation and legal mandates in California, bringing both the parties involved to a common ground is more than just a challenge. What ensues is a bitter battle between the two parties, which more often than not, eventually finds itself in Court.

Temporary Alimony vs Post-Judgment Alimony

Divorce case settlements can take any amount of time. During this period, the Californian court allows for the payment of Temporary Alimony. This support is paid until the case is finalized in court. This alimony amount is settled based on the payor’s ability to pay and the dependent spouse’s need.  The amount can also be modified before the final judgment, with concrete and well-established reasons.

Temporary Alimony – a legal dilemma

It is often the case that the payor of alimony insists that the amount demanded is unreasonable and that he or she does not have the financial means to pay it. The payee on the other hand, insists that he or she will find it difficult to make ends meet with what is offered. This is a serious problem when it comes to the payor-spouses who are in debt. If an individual spends more than he earns, where can he find the means to pay the payee?

Usually, the court solves this dilemma by investigating into the expenses of both the parties. The court checks the expenditures of the parties to see how much of their income is ‘wasted’ on things they do not need. The payee is then directed to ask for an amount that is sufficient only for his or needs, and the payor is asked to adjust his expenditures so that this amount can be paid.

Determinants of a Post-Judgment Alimony

What follows the Temporary support cannot really be called a permanent support as not all judgments allow for alimony payment forever. The Courts in California settles the issue of post-judgment Alimony based on a ‘marital standard of living analysis’ under the guidance of the California Family Code section 4320. Before delving deeper into the directives of the Family Code 4320, the Court makes an analysis of:

  1. The level of frugality or lavishness in the family’s lifestyle.
  2. How functional the marriage has been.
  3. How long the marriage has lasted.
  4. The work-life balance maintained by either spouses

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 Can Cheating On Your Spouse Affect Alimony?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorney; The Maggio Law FirmPeople fall in love, get married, and start families every day. But, unfortunately, marriages fall apart more often than people would like. And one of the biggest reasons behind this is infidelity.

When adultery pushes a marriage to divorce, it becomes a painful experience for everyone involved. Some divorce cases have been known to turn rather nasty and go on for years before settlement.

If you are someone who is on the verge of filing for a divorce because your spouse was unfaithful, there are a few things you need to keep in mind before the papers are drawn. Adultery can affect your divorce and alimony and you need to be aware of how the possible impacts it could have.

How can adultery affect your divorce?

In most states in the United States, adultery can be used as substantial grounds for divorce. But if you live in Orange County, you should know that California is a no-fault divorce state. Here, you can only get a divorce for one of two reasons:

  • Irreconcilable differences between spouses
  • If your spouse has been inflicted with incurable insanity

Many states have deemed adultery as an illegal offense, but California has not, so there are no official state definitions of the act. The courts of California do not consider adultery while deciding the divorce.

How does adultery affect alimony?

During a divorce trial, judges do have some liberty in deciding if alimony has to be awarded, the amount of the alimony as well as the duration. To be entitled to alimony, the receiving spouse should produce evidence of requiring monetary support, and the paying spouse should be capable of paying the amount for that duration of time. Before it has been decided if alimony is necessary, the judge must consider all factors and come to a fair and reasonable decision.

In most cases, judges are not allowed to take marital misconduct into consideration when they are making a decision regarding alimony. The sole purpose of alimony is to ensure that neither of the spouses faces financial troubles once the marriage ends.

Alimony was never intended as a punishment to spouses for bad conduct during the marriage. Since California does not consider adultery as grounds for a divorce, the judges in Orange County and other cities will not base alimony on adultery.

If you are a resident of Orange County and are considering filing for a divorce after your spouse cheated on you, it is recommended that you speak with a family law attorney before your divorce proceedings are set in motion.

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.

Spousal Support Modifications: How Long Does it Take?

Posted by: Gerald A. Maggio, Esq.

orange county spousal support; The Maggio Law FirmSometimes, long after a divorce settlement has been arrived at, and many months of alimony paid out, there may come a need for changing the amount or terms of the spousal support. But how long does this kind of change take? And what are the things you need to have ready to ensure things move along smoothly?

Time taken for pre-divorce spousal support judgments vs. modifications

Spousal support modification needs you to go through a similar set of processes and steps as the procedure followed for the initial support order/judgment during the divorce. And the reason behind the need to follow the same procedure, is that by suggesting there is a need for changes to the judgment already in place, you or your ex believe that something has changed. In other words, the financial situation or circumstances have deviated quite drastically from the time the divorce came through. Which means that you will need provide proof of the new economic situation on either side, the need for the change, and urgency for such a change.

Unlike the original process which may have taken anywhere from six months to a year, the modification can be a little quicker in some cases. Especially if there was a clause in the original order that required say ‘$1000 to be paid with a review in 5 years’, then the process is smoother and therefore, faster.

Why it takes time

A spousal support modification doesn’t happen overnight. Hard though it might seem, having jumped through hoops the first time around, you can bypass any of the steps for the change. In fact, you will need to ensure you provide adequate cause for modification of the terms, a ‘material change in circumstances’. Even if the initial agreement did not prevent modifications, a judge may show some reluctance to make a change if the spousal support payments had bearing on how the other aspects of the agreement were settled.

In addition, if your ex disputes their income status or expenses, or contests the change, you will need to first make a case or settle the dispute or let a judge decide as your attorneys battle it out in court.

Changing spousal support in emergencies

There are two scenarios where the spousal support modifications may need to be dealt with more urgently. If you are in a tight spot, having lost your job and have alimony payments that are due shortly, be sure to raise this with your attorney so that they do not accumulate as huge arrears due to your ex when you do get a job. If you are the spouse receiving the support, and have a huge change in your situation, medical emergencies or other reasons for needing a fast change to the amount you get, again, you will need to be sure to flag this off upfront, although courts often find financial issues to be non-emergencies if an ex parte request for relief is sought.  Be sure to consult your divorce attorney to fully understand your options.

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 To Avoid Crippling Amounts In Spousal Support

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law FirmAlimony is not an entitlement. Ultimately, it is up to the discretion of the judge to decide on the final amounts so you might find yourself in a position where you do have to pay spousal support, sometimes more than you want to. Income is not the only criteria to decide on alimony or spousal support amounts. This depends on over a dozen factors in most states. As important as income is the spousal need. However, if you have done all your groundwork right and worked with good divorce attorneys and a reliable divorce mediator, you should end up with a fair deal.

Hiring a professional

DIY divorces may seem like a good idea at the time, saving you any outflow on lawyers. A caveat here is that while you could navigate the complicated filing yourself, the next steps aren’t as easy as you would imagine. negotiations are something experienced divorce attorneys are well trained in and extremely good at. They will serve your best interests at the negotiating table and will not let emotions derail the process. Without their counsel and skill, you may actually end up paying more in spousal support the long run and wipe out any savings you might have made during the divorce process.

Get a divorce attorney you can trust

Soldiering on with a divorce attorney or team you don’t think is good enough is not a good idea. If you feel your attorney is not what you expected or is incompetent – switch. Fail to do that and you may end up with a raw deal on spousal support and find yourself bogged down with huge payments. A divorce attorney who doesn’t have your best interests at heart will happily stand by and watch divorce mediation deteriorate waiting for the case to head to courts to rack up big legal bills for you.

Work with a divorce mediator

A divorce mediator will help you work out the gray areas. While basics like rent, food and clothing will be taken care off, it is the ‘extras’ like out of pocket medical expenses that you will need to negotiate on. By deciding on these areas out of court, you are much more in control and have a say in the final agreement. Not to mention the saved legal expenses. If you take your case to court, you will need to leave the decision on alimony to the discretion of the judge and lose that control you have.

Don’t forget about the taxman

There’s a third person in this divorce who is often ignored when working through financials. Be sure to consider all tax implications of whatever arrangement you come to on spousal support.  If you don’t you may find yourself paying crippling amounts of taxes and living off very little even though the actual spousal support amount was what you had agreed on to begin with..

Discuss a time limit or other alimony options

Explore the option of temporary alimony to help you spouse get back into the workforce or stabilize financially. In some cases, a lump sum alimony may be what works better for you – discuss this option with your divorce attorney and financial adviser. Agree on a timeframe for alimony payment even if it is not court mandated.

Think of alternatives

You don’t always need to pay out huge sums in spousal support if you can come to some other agreement,. For instance, your spouse may be okay to accept a lower or temporary alimony if they get to keep the family home.

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.  

 
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.