Divorce Involving Domestic Violence: What To Know
Domestic abuse adds many layers of challenges to the divorce process. Whether you need protection from domestic violence or you face accusations of domestic violence, our divorce attorneys at Nelson Kirkman in Newport Beach can help you. On this page, you can read straightforward answers to our clients’ frequently asked questions about these topics.
Is it possible to file a domestic violence action in a divorce action?
Yes, a domestic violence action can be filed with the family law court. Family law court has a lower threshold for domestic violence than criminal courts do, and domestic violence does not necessarily involve physical touching. A domestic violence action may impact many areas of a divorce case such as custody and parenting time, child support, attorney’s fees, and spousal maintenance (alimony).
How do family law courts define domestic violence?
The family law court defines domestic violence as actual or threatened abuse between people who are related by blood or have been in an intimate relationship. This abuse may be physical, psychological, or even emotional in nature. The abuse may or may not be sexual in nature and can result in the other person being injured whether intentionally or unintentionally. The family law court may issue an order to restrain whatever type of behavior was involved in the domestic violence, along with other behaviors.
Will a domestic violence restraining order issued in family court be visible to law enforcement?
Yes, a domestic violence restraining order issued in family court is entered into the California Law Enforcement Telecommunications System (CLETS). CLETS can be accessed by any law enforcement agency in the state. A party with a domestic violence order against them will have that fact known by any police officer who runs their ID.
What are the consequences of a finding of domestic violence?
A documented finding of domestic violence can have serious consequences in California divorce cases. These can include:
- Loss of custodial rights
- Required attendance to 52-week program
- Restrictions on firearm possession
- Restitution payments
- Attorney’s fees
- Loss of spousal support
Who is protected by a Domestic Violence Prevention Act restraining order?
A restraining order protects more than just the person it is issued to. It also covers people in intimate relationships, family members, and members of the protected person’s household. Generally, the restraining order requires that the restrained party stay away from the protected person’s residence, place of work, and avoid all in-person or electronic contact with the protected party.
How long does a restraining order grant protection?
A permanent restraining order may be granted for up to five years with an extension available for another five years. The court may even order that the restraining order be in place as long as the restrained person is alive.
What is the difference in the definition of domestic violence between family law and criminal law?
Generally speaking, the definition of domestic violence in family law encompasses a wider variety of acts than in criminal law. Family law does not have a requirement of physical injury or assault; domestic violence can include acts such as destruction of property, annoying phone calls, and falsely impersonating a person.
How does family law define disturbing the peace?
“Disturbing the peace of the other party” generally can be understood as conduct that damages the emotional calm or mental well-being of the other party (Burquet v. Brumbaugh, Phillips v. Campbell and Qing Hui Gou v. Bi Guang Xino).
Can mental abuse be the basis for a DVPA?
Yes, a Domestic Violence Prevention Act (DVPA) hearing can be based on mental abuse. Mental abuse such as controlling behavior can be sufficient evidence to demonstrate the destruction of mental peace and emotional wellbeing (Rodriguez v. Menjvar).
Can causing fear of bodily injury be a form of domestic violence?
Yes, causing fear of serious injury is disturbing the peace of another and is grounds for a DVPA restraining order (Qing Hui Gou v. Bi Guang Xino and Perez v. Torres-Hernandez).
Can badgering be a form of domestic violence?
Badgering is generally not grounds for a domestic violence protective order. An appellate court ruled that badgering may not be sufficient evidence to warrant a restraining order (S.M. v. E.P.).
Does the DVPA treat domestic partners differently than married people?
No, DVPA protections extend to domestic partners in the same manner as married people (Altafulla v. Ervin).
Can reading and publicly disclosing texts and written materials be domestic violence?
Yes, accessing and publicly disclosing written materials such as emails and text messages can be grounds for a restraining order because such actions disturb the peace of the order party (IRMO Nadkarni).
Is physical abuse required to prove domestic violence?
No, domestic violence is not required to involve physical abuse in family law court. Domestic violence takes many forms such as emotional or mental abuse (IRMO Evilsizor & Sweeney).
Is sending a fake video a form of domestic violence?
Yes, an appellate court ruled that sending a video of a faked suicide was sufficient to disturb the peace of the other party (Hogue v. Hogue).
How do past acts impact current claims of domestic violence?
Proof of past domestic violence, along with current acts or ongoing fear of domestic violence by the protected party, can be sufficient evidence under the DVPA for a restraining order (IRMO Fregoso & Hernandez).
If violence occurs without a child present, can that child be classified as a protected party?
In some cases, the answer is no. In one case, a stepfather was violent to a child’s father without the child present; this was not found to be sufficient for protection under the DVPA (Hauck v. Riehl).
Can the court dismiss a request for a DVPA restraining order without a hearing?
No, the court cannot dismiss a request for a DVPA restraining order without a hearing if pleadings are factually accurate in describing acts of abuse
(Nakamura v. Parker). Accusations by themselves are not sufficient grounds for a finding of domestic violence (A.G. v. C.S.).
When considering a restraining order, is the victim’s safety what the court focuses on?
New answer needed here.
Can the court grant mutual restraining orders on both parties?
Yes, the family law court can grant mutual restraining orders on both parties. To do so, each party must request a restraining order on the other party. The court does not have the authority to grant a restraining order that hasn’t been requested by the party through appropriate methods (Isidora M. v. Silvino M.).
Is a claim of self-defense valid against domestic violence claims?
Yes, self-defense is a valid defense against domestic violence allegations. For a family law court to issue a restraining order against a party, it must find that the party acted as the aggressor in the situation and not in self-defense (J.J. v. M.F. and IRMO G).
What are the requirements for a restraining order protecting a minor child?
According to the DVPA, to issue a restraining order that names a minor child as the protected party, the court must have evidence that the child’s safety is at risk (IRMO C.Q.).
Must protected parties live together to be protected as cohabitants?
Yes, to be protected as a cohabitant by a DVPA restraining order, a person must live in the same household as the protected party (O’kane v. Irvine).
Do domestic violence orders related to child support and custody end on the same day a restraining order ends?
New answer needed here.
Can the court order the party who committed domestic violence to pay the attorney fees of the other party?
Yes, the court can order the party found to have committed domestic violence to pay the attorney’s fees of the victim party. This order to pay fees will not be reversed on appeal unless the court is found to have abused its ability to order such fees paid, or if the amount ordered “shocks the conscious” (Loeffler v. Medina). After a DVPA restraining order has been issued, the victim party may seek an awarding of fees even if they didn’t seek such an award initially.
Can the court extend or renew a domestic violence order?
Yes, the family law court can renew an existing domestic violence restraining order for five years or even make it a permanent order. The renewal of a restraining order is based on the restrained party’s likelihood of future abuse (Ritchie v. Konrad and Cueto v. Dozier). Continuing abuse is relevant when considering the renewal (Perez v. Torres-Hernandez and Ritchie v. Konrad). A fear of physical abuse is not a requirement for renewal (Eneaji v. Ubboe).
Get Help From Our Family Law Attorneys — Request A Consultation
The sooner you contact Nelson Kirkman about your situation, the sooner our domestic violence attorneys can protect your rights. Learn how we can help you by calling us at 949-430-6952 or by using our online contact form to set up a consultation.