California law takes domestic violence very seriously, as it should. Our courts are designed to protect victims and ensure the safety and well-being of all parties, especially children. However, the powerful implications of a DVRO can, unfortunately, tempt some litigants to file these requests not out of genuine fear for their safety, but strategically, to influence the outcome of their divorce case on various fronts.
Let's break down how this can play out:
Child Custody and Visitation: This is perhaps the most significant area impacted by a DVRO. Under California Family Code section 3044, if a court finds that a parent has committed domestic violence within the past five years, there is a "rebuttable presumption" that awarding sole or joint physical or legal custody to that parent is detrimental to the child. This is a very strong presumption, often leading to the non-abusive parent receiving sole legal and physical custody, and the restrained parent facing restrictions like supervised visitation. While this protection is crucial for true victims, a false allegation, even if ultimately disproven, can cause significant disruption and stress for the accused parent and their relationship with their children during the legal process.
Child Support: While child support is primarily calculated based on income and time spent with the children, a DVRO can indirectly impact it. If a parent's custodial time is significantly reduced due to a DVRO, their child support obligation might increase. Furthermore, the court has the jurisdiction to order the restrained party to pay attorney's fees incurred by the protected party in obtaining the DVRO, which can indirectly affect available funds for other support obligations.
Spousal Support (Alimony): California Family Code section 4325 can prevent a spouse convicted of domestic abuse from receiving spousal support. While this specifically refers to a conviction, the presence of a DVRO, even without a criminal conviction, can certainly influence the court's perception of the parties' conduct and potentially impact spousal support awards. Economic abuse, such as hiding or wasting assets, can also be considered a form of domestic violence and breach of fiduciary duty, further influencing spousal support and property division.
Attorney's Fees: This is another area where DVROs can have a substantial impact. When a DVRO is issued after a judge's finding of abuse, the protected party is entitled to mandatory attorney's fees and legal costs, regardless of the abuser's ability to pay. This means the accused party could be ordered to pay a significant portion of the other side's legal expenses, even if they are struggling financially. Conversely, a prevailing defendant to a DVRO application can only be awarded fees if they prove the request was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay – a much higher burden of proof.
The Misuse: The problem arises when a litigant, understanding these significant consequences, fabricates or exaggerates claims of domestic violence to gain leverage. This can lead to:
- Temporary Restraining Orders (TROs) based on minimal evidence: TROs can be granted without the accused party present, meaning a person can be suddenly removed from their home and have their contact with their children restricted based on a petitioner's initial statements. While temporary, this period can be incredibly disruptive.
- Weaponizing the process: The sheer weight of a domestic violence allegation, and the fear of its repercussions, can be used as a bargaining chip in negotiations, pressuring the accused party to concede on other issues like property division or support.
- Emotional and financial strain: Defending against false or exaggerated DVRO claims is emotionally draining and financially costly, diverting resources that could be used for other aspects of the divorce.
As family law specialists, our role is to navigate these complex situations with integrity. We must diligently assess the evidence, protect our clients, and advocate for fair and just outcomes while upholding the sanctity of domestic violence protections for those who truly need them. If you are facing a divorce and believe domestic violence is a factor, or if you are concerned about false allegations, it is crucial to seek experienced legal counsel and a Certified Family Law Specialist with the California State Bar Association to ensure your rights and interests are protected.