Divorcing an Abusive Spouse?

Call Our San Jose Domestic Violence Attorney Now

It is a painful thing on many fronts to be a victim of domestic violence. This all-too-common type of violence can take many forms – namely verbal, sexual, and other physical forms of abuse. No one should ever have to suffer the betrayal of a partner in the form of domestic abuse. Sadly, according to the American Psychological Association, “one out of three women have been beaten…or otherwise abused during her lifetime” and “one out of more than 4 men” are affected by domestic violence in the U.S. If you are involved in an abusive situation, then you may fear what will happen if you take steps to separate from your spouse.However, a family law attorney can help you protect yourself from an abusive spouse during divorce proceedings.

With decades of experience in the field, domestic violence attorney Thomas Nicholas Cvietkovichis dedicated to helping victims of domestic abuse. He has experience in both family and criminal law, making him uniquely qualified to assist you with a divorce involving domestic violence.

Can Domestic Violence Affect the Outcome of My Divorce?

In California, spouses are able to file for a “no fault grounds” divorce. This means that, generally, no matter what the situation is, the reason for filing for divorce will simply be labeled as “irreconcilable differences” and will be treated like any other divorce proceeding. That said, the accusation of domestic violence is taken into consideration, especially if children are involved.

When it comes to the subject of spousal support, there is one situation in which the accused could potentially not receive any support at all. According to California Family Code section 4325, if a criminal conviction exists for “an act of domestic violence….within 5 years prior to the filing of dissolution” of marriage that there is a “rebuttable presumption” that the accused shall not receive “any award of temporary or permanent spousal support otherwise awardable.”

This presumption is not automatic by any means, however, and completely contestable. It can even be overturned with enough evidence in the accused’s favor. Therefore, you should always consult a domestic violence attorney for assistance with your case.

How Does Domestic Violence Affect Child Custody?

Unfortunately, all forms of domestic violence can affect children as well (in both the long and short term). The state of California takes custody very seriously – there is specific legislation in place that ensures the health and wellbeing of every child in these types of proceedings. An accusation of domestic abuse will be under serious scrutiny from the judge in a custody hearing. It is the judge’s overall responsibility to evaluate and decide what the best interests of the child(ren) are, based on the evidence and testimony provided.

In the event that the judge determines that the accused is guilty of domestic violence, a “rebuttable presumption” is applied. In other words, unless the accused comes up with enough relevant evidence to disprove the allegations, the court rules that he or she should not have custody, temporary or otherwise, of the child(ren).

Some examples of evidence that can help overrule a rebuttable presumption include:

  • Certificate of completion from a 12-Step or other similar program relevant to the abuse allegations (Ex: drug/chemical dependency programs or parenting classes).
  • If on parole, proof that you have complied with all instructions of your parole.
  • If there are any existing restrictive or protective orders against you, then you may provide proof that you have complied.

Unless it is not in the child’s best interest, the court is required to grant fair visitation rights to the each party. If it is not in the child’s best interest to be alone with the abusive parent, then supervised visits may be granted. This is on a case-by-case basis. Conversely, in extreme cases, parental rights can be revoked entirely- meaning all physical and legal rights to the child are lost.

The accuser may petition for temporary full custody prior to court proceedings, but he or she must provide proof of domestic abuse.

Need Help? Call Our Domestic Violence Lawyer

Know that you have rights and that hiring an experienced domestic abuse attorney can help make the overall divorce process less stressful, leaving you more level-headed during proceedings and protected in the bright future ahead of you. If you or someone you know are a victim of domestic abuse, call the Law Offices of Thomas Nicholas Cvietkovich to schedule a free consultation with one of our domestic violence attorneys to get help today.