The language of Family Code (FC) section 4320(i), one of the factors that the court must consider in evaluating post-judgment or “permanent” alimony orders states:
“Documented evidence of any history of domestic violence, as defined in section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.”
Documented evidence generally will mean, police reports, criminal convictions, domestic violence restraining orders, medical reports, photos, witness declarations are just some examples I have used as relevant and critical evidence to prove domestic violence.
The definitions of domestic violence in the family law arena are broadly defined in FC section 6320. Even “disturbing the peace of the other party” could be deemed domestic violence. In the case in re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, included protections into the wife’s email account. It also included physical threats – but no actual physical injuries. The trial judge was reversed in his belief that emails and threats were insufficient but the legislature and appellate courts sent a strong message that domestic violence must be taken seriously.
The ongoing bitter Johnny Depp and Amber Heard dissolution centers on the allegations made by Ms. Heard of domestic violence. Mr. Depp’s legal team won a recent ex parte motion to be able to take the deposition of Ms. Heard on August 6, 2016. As Depp’s lawyer has said Heard is attempting, “to secure a premature financial resolution by alleging abuse.” But as noted above the legislature and family case law dictates that domestic violence is broad in definition and can in fact, include emotional and physical threats.
As having been a District Attorney for Los Angeles County, the criminal standard for filing a domestic violence and/or battery case is much higher than the standard used in family law. But the realities are that most judges “want” concrete and substantial evidence of domestic violence to rule against or for allowing temporary and permanent spousal support. It is not the only factor to assist the courts in establishing spousal support but it is a required analysis in the totality of evidence that must be reviewed by them.
Establishing or defending against a domestic violence case in family law requires expertise and experience in this area. If the court does find that a spouse is a victim of domestic violence, this will impact not only spousal support but also child custody and child support. Therefore, if the allegations are just that—it is imperative that the facts must be brought to the court’s attention.
Feel free to discuss this issue with me by emailing me at [email protected] or calling my office at 310-601-7144. Refer to my website at attycastaneda.com for prior articles about domestic violence.