Domestic violence is a common issue that arises during divorce. Oftentimes, a criminal investigation must take place in order to prove that the alleged domestic violence actually occurred. This typically slows down family law proceedings. For example, what happens when one party during a divorce cannot afford to move away from his/her former spouse and into a safe environment, but cannot attain spousal support due to the ongoing criminal investigation for domestic violence? A recent appeal sheds light on this complicated issue. The names are of the parties involved were held confidential.

J.Q. v. T.B. (Super. Ct. Nos. 12D009260 & 12V000499)

J.Q. and T.B. met online in September of 2009. J.Q. lived in Wuhan, China, while T.B. lived in Orange County. They communicated through e-mail, translation devices, and interpreters. T.B. even visited J.Q. in China on four separate occasions. They eventually married in 2010 in China.¹

J.Q.’s visa was approved by 2012, and two months later she was also applying for a domestic violence restraining order against T.B. A year after their marriage, T.B. sought to divorce J.Q. for alleged infidelity and calling the police on him during a domestic dispute. During the domestic dispute, T.B. allegedly physically abused J.Q. during sexual intercourse, repeatedly threw her to the ground, and verbally attacked her.

Because of the allegations of domestic violence, J.Q. was granted a temporary restraining order against T.B. T.B. now had criminal charges against him for corporal injury on a spouse and disturbing the peace. J.Q.’s restraining order would be in place until the criminal matter became resolved. However, the judge denied J.Q.’s request for spousal support during this time.

A hearing was set in mid-2012 to determine if the court had jurisdiction to order spousal support before the domestic violence hearing had even occurred. Under the Domestic Violence Prevention Act, the court determined it could award J.Q. with the couple’s home so that the children’s lives would not be disturbed. However, it could not order spousal support without first finding out if the domestic violence had occurred.

During the domestic violence trial, it was determined that there was not enough evidence to prove that T.B. had committed domestic violence. J.Q.’s request for spousal support was denied.

J.Q. appealed the trial court’s decision. The Court of Appeal for the State of California concluded that spousal support could be awarded by the trial court, even before concluding whether domestic violence had occurred, based on section 6341 of the Family Code.

The safety concerns for J.Q. during the domestic violence trial make it the court’s obligation to award spousal support. According to the Court of Appeal, an applicant’s need for financial support is magnified when there is a criminal investigation in process. In the best interest of J.Q.’s safety, the Court of Appeal reversed the trial court’s decision and awarded her with spousal support.

What Does This Mean For You?

If you have divorced or legally separated from your spouse, the court can order either party to pay the other a certain amount of money each month in spousal support. Typically, the judge can make a spousal support order for any of the following situations:

• A divorce;
• A legal separation;
• An annulment; or
• A domestic violence restraining order.²

Spousal support can also be awarded while the case is going on. This is known as a temporary spousal support order or temporary partner support order. During a domestic violence proceeding, the judge has the power to order spousal support if he or she feels that one of the parties’ safety is in question.

Although the trial court denied J.Q.’s request, the Court of Appeals eventually reversed this decision. The Court felt that J.Q.’s safety could have been at risk, and she would need spousal support to move away from the home she shared with T.B.

The dollar amount for temporary spousal support will vary on a case-by-case basis. The judge will consider several factors when making the final spousal support order:

• The length of the marriage or domestic partnership;
• The needs of both parties based on their standard of living during their relationship;
• Whether having a job would make it too difficult to care for the children (if any);
• The age and health of both parties; and
• Whether there was domestic violence involved during the relationship.

As in the case of J.Q. and T.B., a spousal support order can depend on domestic violence during the partnership. However, even if there is no finding of domestic violence, a judge can still award it. If the party does not have the financial resources to move out of the home, a spousal support order can be granted if the judge still feels like his or her safety is at risk, so that the party can afford to live in a safe environment.

Call the Divorce Lawyers at Wallin & Klarich Today

We understand that going through a divorce or separation is emotionally taxing and very stressful. It can also drain you financially once all of the court proceedings have taken place. This is why it is important to have an experienced California divorce lawyer advise you through the ins and outs of domestic violence restraining orders and spousal support. With over 30 years of experience, the attorneys at Wallin and Klarich can help you through this difficult time efficiently and aggressively.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, one of our knowledgeable attorneys is available to help you no matter where you work or live.

Call us today at (888) 749-7428 for a free phone consultation. We will help you get through this.