People of any gender, income level, age, etc. can fall victim to abuse or become abusers. Furthermore, abuse consists of more than just physical attacks. Threatening violence, destroying property, withholding money as a form of control, or verbally harassing someone are also forms of domestic abuse.
Many abusers break down their victims’ self-esteem or make them feel unsafe. Survivors may worry they can’t make it on their own or worry that their abuser will escalate to more dangerous behavior when they leave. This can make it difficult for survivors to take the leap and petition for divorce.
That is why California has developed legal protections for domestic violence (DV) survivors. Spouses who want to leave their abusive partners can use these protections to pursue divorce while ensuring they (and their children, if applicable) are safe. Here is how these California protections can help protect victims of domestic violence during a divorce.
Protections for Domestic Violence Victims
Survivors of domestic violence have multiple rights codified under California law, including:
Right to Restraining Orders
You can ask for a restraining order against your spouse to protect you, and your children if they are at risk, from harassment or dangerous behavior. You can even ask for an emergency order that goes into effect almost immediately when you file your divorce petition.
If you have a restraining order, your spouse cannot do any activities outlined in the order. Frequent elements in DV restraining orders include requirements like:
- Moving out of a shared home
- Not contacting the protected person
- Staying away by a certain distance
- Avoiding certain spaces the protected person frequents, such as their place of work, school, and vehicle
If there is a restraining order in place, you and your spouse will not be able to meet to negotiate your divorce. However, negotiation is unlikely to be productive in situations of abuse. Instead, your restraining order and divorce proceedings will be handled through court hearings, attorney assisted negotiation, or a combination of the two. Hearings in many counties are currently being handled remotely, which has the added benefit of allowing you to appear in Court without being in the same courtroom as your abuser. (Make sure to check with your attorney, since not all counties allow remote appearances or allow them in every situation.) If you do appear in person, the courtroom bailiff will be aware of your orders to ensure a safe experience in the courtroom. You may also be allowed to bring a support person to your hearing in addition to your counsel.
Right to Emergency Custody Orders in California
Similarly, if you fear for your children’s safety with your spouse, you can petition for emergency “ex parte” child custody orders. These emergency orders supersede any other custody orders until the court has time to review the case more thoroughly. You can file this request alongside your divorce petition to keep your children safe.
You will need to prove that there is a credible and imminent threat to your children’s safety to receive an ex parte order. This may include medical records, witness testimony, communications from your spouse, Child Protective Services reports, and anything else that demonstrates that your spouse is putting the children in danger.
It is important to note that ex parte orders are not permanent. The court will schedule a custody hearing within a few weeks of issuing the emergency custody order to review the matter and make further orders. At this hearing, it may extend or end the temporary order. Alternative orders may also be made taking into consideration the circumstances at the time and paperwork filed by each party.
If you have strong proof that your children are at risk, the court may be able to offer you relief in the form of an order for sole custody. However, this requires careful legal preparation, so working with a skilled family law attorney is critical to building your case.
Rights Regarding Spousal Support Orders and Abuse
If you have a higher income than your spouse, but they have abused you, you may be able to request that no spousal support is ordered or the amount paid is less due to the abuse you suffered. It is important to note that you are not guaranteed freedom from paying spousal support to your abuser. California requires you to prove that abuse occurred before it will consider removing someone’s right to spousal support. The most effective way to avoid being ordered to support your abusive spouse is to press criminal charges. A conviction for domestic violence is very persuasive evidence that the court should withhold requested spousal support.
Expert Legal Counsel for Domestic Violence Survivors
Considering a divorce from an abusive partner can be an overwhelming and intimidating decision. You do not need to go through this difficult process alone. Reach out to the skilled California domestic violence and family law attorneys at Flicker, Kerin, Kruger & Bissada LLP to get help. We can support you through the process of safely leaving an abusive spouse and help you get the protective orders you need. Schedule your consultation today to learn how we can help you safely start your new life.