How California Defines Domestic Violence
in 2024 | Family Code 6320
According to the National Violence Prevention Hotline, intimate partner violence affects more than 12 million people in the U.S. every year, making it an all too common problem. While there can be a misperception that domestic violence always involves physical abuse, abusers can inflict harm on their victims in many ways. California law is both broad and detailed in outlining what it considers to be abusive behavior in intimate relationships, encompassing both physical abuse and other forms of emotional and psychological mistreatment that do lasting damage without ever leaving a bruise.
Someone dealing with domestic violence in their marriage in any form may feel trapped, worried that seeking divorce will leave them (or their children) vulnerable to further abuse by an enraged partner. The state of California provides options for protection while a divorce is pending, and also considers domestic violence as a factor when deciding property division, spousal support, and child custody. Those seeking divorce in a domestic violence situation should consult an experienced family law attorney to ensure that they are receiving the full benefit of all legal safeguards available to them.
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Domestic Violence in the Context of Divorce
Divorce is never easy. When domestic violence is involved, steps to exit the marriage safely must be planned well in advance. This means securing safe living arrangements, gathering the support of family and friends, assuring a means of financial support, and getting copies of important documents and financial records. While the risk of physical assault may often be uppermost in a victim’s mind, abusers will also lash out by cutting victims off financially or by refusing to cooperate with the divorce proceedings.
Such steps may not be enough to deter an abuser who is determined to exact revenge or continue to exert control over their victim, however. Securing a temporary protective order as soon as possible can help provide legal protection for someone who is attempting to leave as the divorce gets underway, giving them breathing room to seek longer-term remedies. These protections are not just available for those fearing physical violence, but also for those experiencing other forms of abuse within their marriage.
Understanding CA Family Code Section 6320
It’s well known that leaving an abusive marriage is often the most dangerous time for an abused spouse. When there is the potential for immediate harm, in California, victims of domestic violence can file for a temporary restraining order to provide legal protection in the short term as a permanent restraining order is sought. California Family Code Section 6320 details the types of behaviors that can be prohibited via such a protective order, from physical violence and harassment to vandalism and “disturbing the peace of the other party.”
Notably, in 2021, California amended this section of the family code to include coercive control, (defined as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty,”) as grounds for obtaining an ex parte order. Examples provided in the statute include depriving the victim of basic necessities; isolating them; controlling their communications, movements, or finances; controlling their behavior through force, threats of force, or intimidation; and reproductive coercion. This acknowledges that not all domestic abuse takes the form of physical violence and that insidious patterns of abusive control can fly under the radar when viewing abuse through a limited lens.
Impact of Domestic Violence on Divorce in California
The fact that California is a no-fault divorce state does not mean that domestic violence has no impact on the result of a couple’s divorce. In fact, the court must consider a finding of domestic abuse on a range of matters affecting divorce, including property division, spousal support, and child custody, particularly when there have been criminal convictions on the part of the abuser, whether felonies or misdemeanors.
The presence of domestic violence in a divorce can result in any spousal support from the injured party to the convicted spouse being prohibited and/or the injured spouse keeping the full amount of their own retirement and pension benefits (even if the convicted spouse would ordinarily have had a community property interest in half), per California Family Code 4324.5 and 4325. Similarly, a finding of domestic violence often means the court grants sole physical and legal custody of any children to the non-abusive parent, as it is in the best interests of the child to limit their contact with the abuser.
Obtaining a Protective Order and Divorce in California
A domestic violence restraining order obtained under Code Section 6320 is obtained “ex parte,” meaning that it doesn’t require a response from the other side for the judge to make a decision. It does require the petitioner to provide details on why they need immediate protection, though, and it is only in force for a relatively short time (approximately 3 weeks) to cover the gap in time when forms are filed for a permanent restraining order and when a hearing can be held.
To obtain a permanent restraining order, which can be in effect for up to 5 years, the petitioner will need to go to court. They will need to present their case, with supporting facts and testimony to document the abuse, and their spouse will have the opportunity to argue their side. Trying to obtain protective orders can be highly stressful, and adequately showing a pattern of abuse can be difficult when it does not involve physical violence. While it is not required to have legal representation to seek a restraining order, having a knowledgeable family law attorney can improve the odds that a petition will be successful.
Seeking Legal Support
In cases of domestic violence and divorce, it is essential to seek experienced legal support as soon as possible. Abusers may attempt to manipulate the legal system to continue to emotionally harm and control their victims. In addition to helping an abused spouse navigate the process to obtain protective orders, an attorney with experience in similar cases can provide support to avoid perpetuating the cycle of abuse through the legal process.
Conversely, for a spouse who has been unfairly accused of domestic violence, legal representation is equally important. Given the potentially serious consequences of a charge of domestic violence on spousal support, property division, and child custody, any allegation of domestic violence in connection with divorce, even if it seems frivolous, should be taken seriously.
Expert Family Law Services in the Bay Area
Divorcing an abusive spouse can be a terrifying ordeal. The attorneys at Hart Ginney are experienced in handling cases involving domestic violence, and can provide the compassionate, educated advocacy you need to protect your rights and your safety. To schedule a consultation, call us at 510-628-0250 or fill out the form below.
