How Does Domestic Violence Affect Divorce Proceedings?
Though the issue of domestic violence continues to grow more visible, the practical steps necessary to overcome the threat it poses remain fraught with difficulties, particularly when victims attempt to separate from their abusive partners.
In this feature we hear from Elizabeth Voorhees, a family law attorney and a specialist in domestic violence issues, on the challenges that violent abuse creates during divorce proceedings and how legal counsel can best equip victims to handle them.
What are the key laws that define domestic violence in your jurisdiction?
In 1993, California passed its own version of the Domestic Violence Prevention Act, following in the footsteps of the federal Violence Against Women Act amendments to the Family Violence Prevention and Services Act, which was initially enacted as Title II of the Child Abuse Amendments of 1984. FVPSA and VAWA give funds to shelters across the United States that meet certain criteria and engage in educational and awareness programs across the country, primarily addressing issues of domestic violence, dating violence and, more recently, stalking.
In 2021, the California legislature passed SB1141 into law, adding crucial new language to the definition of “coercive control” in intimate partner and other familial relationships. Examples of coercive control include things like controlling the partner’s movements, monitoring mileage on the odometer of the partner’s car, tracking the partner via cell phone to “punish” them for straying out of bounds and isolating the partner from friends and family in an attempt to seize control over all their social interactions.
In what ways can domestic violence and other criminal actions affect proceedings related to divorce?
There are several California Family Code sections that pertain specifically to different outcomes in awards of child custody and spousal support. For example, in Cal. Fam. Code §4320, there are 23 different factors the Court must consider when deciding whether and how much to award spousal support to a lower-earning spouse. One of those factors specifically addresses any domestic violence history in the marriage. Cal. Fam. Code §4325 (a) provides that if the lower-earning spouse has a criminal conviction for domestic violence within five years prior to the filing of the divorce proceeding, or at any time after that, a rebuttable presumption kicks in, affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse which would be otherwise available to him/her should not be made. This protects spouses who are abused from having to pay monthly spousal support to their abusers.
In what ways might this impact custody disputes?
The code section related to the DVPA which has the most immediate effect on custody disputes is Cal. Fam. Code §3044. This code section creates a rebuttable presumption that the abusive parent is not fit to share joint legal or joint physical custody with the victim spouse or partner.
There are several California Family Code sections that pertain specifically to different outcomes in awards of child custody and spousal support.
This presumption can be overcome by the abusive spouse showing that they have done one of the following: demonstrated that it is in the best interests of the child/ren for them to have custody; successfully completed a batterer’s intervention program (typically a 52-week course); successfully completed an appropriate parenting class; if the abuser is on probation or parole, whether they have successfully completed the terms of that probation or parole; where there is a restraining order of any kind, whether the parent has complied with the terms and conditions of that order; and whether that abuser has committed any further acts of abuse.
California law has a very strong presumption in favour of children having “frequent and continuing contact” with both parents (Cal. Fam. Code §3020.). Therefore, the aim of the §3044 presumption is to hold the abusive parent accountable and to encourage them to get help to add different and more constructive tools to their parenting toolbox before moving them to a more equal timeshare with the children.
How would you advise a spouse who has been the victim of domestic abuse to protect themselves and their family during divorce proceedings?
In terms of a spouse protecting themselves during a divorce, I only recommend seeking a restraining order under the DVPA if there has been a pattern of coercive control or violence. Seeking a restraining order against their partner often keeps spouses intertwined with their abuser in terms of repeated court hearings, etc. I always advise my clients to first make a safety plan, which includes packing essential items like passports, birth certificates and changes of clothing for themselves and the children into a “go-bag” and hiding that bag with a friend or relative. I encourage them to plan to be away from home for two to three weeks and to block their social media accounts. If the violence is particularly frightening to them or to the children, I tell them to leave their cell phone in the house and pick up a burner phone so that they cannot be tracked.
My county has very good domestic violence shelters for women and children, but these shelters do not house men who are abused and typically do not allow boys over the age of 13 to stay there, so I do not always send my clients to shelters. As far as I know, there are no shelters for men who are victims of domestic violence in the Bay Area at this time. I advise my male clients in the same way in terms of safety planning and hiding for a time until we can file the restraining order, if needed, and get their partner served with process.
As far as I know, there are no shelters for men who are victims of domestic violence in the Bay Area at this time.
I always advise a clean break with the abuser, but that is something that is particularly challenging for people to do. It takes domestic violence victims an average of seven tries to successfully leave their abuser, and if you really think about it, that makes some sense. This is a person you have been completely open and vulnerable with; a person you love. When that person tells you that s/he is sorry and will do better (“It will never happen again”), there is a strong pull to believe them. I tell my clients: “You can always re-marry this person, but right now, it is time to act decisively and deliver the message that it is not okay for them to treat you abusively by setting firm boundaries and following through with the divorce.”
Why is it important that a victim of domestic violence shares this information with their divorce lawyer?
There are several reasons why it is important for people to divulge their marital dynamics to their divorce lawyer. We cannot help clients if we only have half the story. Often, coercive control plays a major role in the inter-personal dynamics of the marriage, and the spouse on the receiving end of that control is unaware that they are even in an abusive relationship.
Whether there has been domestic violence in the relationship should be on every family law attorney’s intake form, but not just the blatant question. Attorneys should ask things like: who controls the money in the relationship? How often do you (the client) see your family and friends? Are you given an “allowance” to spend by your partner? Who makes the rules for the household? Who disciplines the children? These questions get to the heart of controlling behaviours that the client may not even understand are problematic and enable the attorney to plan the case with a keener awareness of the marital dynamics.
Domestic violence throughout the marriage can affect support and custody in myriad ways. We owe it to our clients to provide them with the most effective advocacy we can muster and we cannot fully prosecute their case without all the facts.
Elizabeth Voorhees, Senior Attorney
6840 Via Del Oro Suite 265, San Jose, CA 95119
Tel: +1 408-212-7915
About Elizabeth Voorhees
“My name is Elizabeth Voorhees, and I have been a licenced attorney in California since November of 2004. Prior to that time, I served as a state-certified Domestic Violence Advocate for seven years with various non-profit organisations in Santa Cruz County. My firm is Seabrook Law Offices, Inc. We are a relatively new family law firm serving Silicon Valley, Santa Cruz County and other communities in the Bay Area. Our firm employs four attorneys and the best support staff in the Bay Area!”