October 20, 2014 By Paul Wallin

The difficulties of getting a divorce seem endless. Not only do parties of a divorce have to deal with the emotional trauma of the procedure, they also have to go through an intense legal process to finalize the divorce. California is a no-fault divorce jurisdiction, which means that fault may not be taken into account when determining the outcomes of a divorce – including distribution of marital property and spousal support orders. However, the exception to this rule comes in to play when domestic violence was present in the marriage. This can have a significant impact on the outcome of your spousal support order.

What Factors Does the Court Consider When Making a Spousal Support Order?

spousal support domestic violence

In ordering spousal support under this part, California Family Code Section 4320 spells out the factors that the court must consider when deciding to award spousal support. The factors are as follows:

  • The earning capacity of each party, including the marketable skills of the supported party, the time and expenses required for the supported party to acquire the appropriate education to develop those skills; and the possible need for retraining or education to acquire more marketable skills or employment
  • The extent to which the earning capacity of each party will be able to maintain the standard of living that was established during the marriage
  • The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party
  • The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living
  •  The needs of each party based on the standard of living that was established during the marriage
  • The obligations and assets, including the separate property, of each party
  • The duration of the marriage
  • The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party
  •  The age and health of the parties
  • The immediate and specific tax consequences to each party
  • The balance of the hardships to each party
  • The goal that the supported party shall be self-supporting within a reasonable period of time. (Except in the case of a marriage of long-term marriage, which is a marriage lasting more than ten (10) years).
  • The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award
  • Documented evidence of any history of domestic violence between the parties or perpetrated by either party against either party’s child

Of course, the court also has the discretion to consider any other factors the court determines are just and equitable. Additionally, the court has the discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this sections 4320 and 4336 of the California Family Code.

How Exactly Does Evidence of Domestic Violence Factor In When Awarding Spousal Support?

When making an award for permanent spousal support, the trial court is required to consider and weigh the factors listed in section 4320 of the Family Code to the extent that they are related to the case.

Temporary spousal support, on the other hand, is subject to the trial court’s broad discretion and the trial court may order any amount based on the party’s need and the other party’s ability to pay.

Section 4320(i) of the Family Code directs the trial court to consider a history of domestic violence between the parties, including consideration of emotional distress resulting from documented domestic violence against the supported party.[1] This section also creates a rebuttable presumption against awarding support to an abusive spouse. This means that the court will presume that the abusive spouse should not get a spousal support award unless that spouse rebuts the presumption by providing the court with convincing evidence. The code further states that the criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.

Call Wallin & Klarich Today

At Wallin & Klarich, we understand how difficult it can be to go through a divorce. We also know the difficulty of dealing with a domestic violence claim. It is important that you understand how domestic violence in your marriage can affect the outcome of your divorce or your spousal support order.  We recommend that you seek the assistance of an experienced family law attorney immediately. Our knowledgeable attorneys at Wallin & Klarich have over 30 years of experience successfully helping our clients with divorces that arise out of domestic violence. Let us help you today.

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

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

[1] Cal. Fam. Code § 4320

Leave a comment

Practice area

  • Contact Us Now

    If you want a caring and aggressive family law firm fighting for your legal rights, now is the time to contact us.

  • This field is for validation purposes and should be left unchanged.


Latest Posts

SCHEDULE YOUR free consultation
  • This field is for validation purposes and should be left unchanged.