Criminal Domestic Violence Case Impact on Divorce Case

When there is a criminal domestic violence case pending at the same time as a family law case, there can be a great deal of confusion, anxiety and stress because of the high stakes and emotional nature of the two proceedings.

For example, a defendant in the criminal case will often request a continuance of the family law or divorce proceeding, citing the Fifth Amendment right against self-incrimination.  In other words, to properly represent himself or herself in the family law case, the party may have to discuss events that are the subject of the criminal case, so the party asks to remain silent in family court and therefore, requests a continuance.

The judge in family court will often grant such a request, but grant a short continuance so that the family court or divorce case parties are not prejudiced in their rights any longer than necessary.  

At the same time, the family court may order a protective order that has less restrictive terms than the “no contact” protective order issued over the same parties in the criminal case, leading the parties in the criminal case to ask the judge assigned to the criminal case to relax the terms so that the defendant avoids the problem of violating the criminal protective order by following the terms of the family law order.  

The reverse can also take place if the family law protective order is more restrictive than the criminal law protective order (for example if it permits “peaceful contact”), so the parties may have to request the family court judge modify the terms of his or her order so the parties avoid violating the family court order by following the terms of the criminal protective order.

We often find the family court protective order to be more restrictive than the criminal court protective order.  This is often so because Family Code § 6306(b)(1) states the family court judge call consider “a conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code [these are “Strikes” under the Three Strikes Law]; a misdemeanor conviction involving domestic violence, weapons or other violence; an outstanding warrant; parole or probation status; a prior restraining order; and a violation of a prior restraining order.”  It merits mention that the family court judge can consider such prior convictions even if the other spouse was not the victim in such crimes.

The area that seems to create the most amount of intrigue, or at least misunderstanding, are several Family Code provisions that allow consideration of certain convictions in awarding child custody and spousal support.  Family Code § 4325, as a procedural provision, permits the judge to find the date of separation to be the date of the incident leading to a domestic violence misdemeanor or any other conviction (involving one spouse being a victim of the other spouse) that leads to a term of probation although the parties identify a later date, sometimes even months later.  This setting of an earlier date of separation can have significant financial consequences for back spousal and child support.  Under Family Code § 3044(d)(1) allows the judge to consider any prior conviction within the last five years for such purposes.

Such a finding of abuse by using prior convictions establishes a rebuttable presumption that the perpetrator of such abuse not be awarded sole or joint physical or legal custody of any of the parties’ minor children.  This finding may further impact financial matters related to child support because an offending parents timeshare with the children may decrease and child support is partly based on the calculation of that timeshare.

Lastly, it merits mention – although this is a rare situation – that pursuant to Family Code § 4324, a spouse who attempts to murder or solicits another to murder the other spouse is prohibited from receiving spousal support, medical, life or other insurance benefits from the injured spouse.  

Additionally, pursuant to Family Code § 4324.5, a spouse who has been convicted of a violent sexual felony or a domestic violence felony in certain instances may be denied spousal support, may not be entitled to attorney’s fees through the injured spouses separate property and might not receive community property interests in the injured spouse’s retirement and pension benefits.  

This article appears on our website, but it would be a mistake to attribute it all to us.  More accurately, credit should be given to Judge Anthony J. Ferrentino and his April 17, 2024 article in the Daily Journal titled “How do criminal domestic violence cases affect family law and DVPA actions?,” the contents of which we thank him.