Legal Information: California

Divorce

Updated: 
June 18, 2018

If my spouse was convicted of abusing me, can I be ordered to pay him/her spousal support? What if I was wrongfully convicted of abusing my spouse but I am the real victim?

The law regarding whether or not you can be ordered to pay spousal support to an abusive spouse is slightly different based on whether the conviction was a misdemeanor or a felony.

For misdemeanor convictions

If your spouse was convicted of a misdemeanor act of domestic violence against you within the five years before you filed for divorce or at any time while the divorce is pending, there is a "rebuttable presumption" against you paying spousal support and his/her attorney's fees. What this means is that the judge is supposed to assume that you should not be ordered to:

  • pay him/her temporary or permanent spousal support; and
  • pay his/her attorney's fees from your separate property (although payment can come from the community assets).1

However, the convicted spouse can present evidence to convince the judge to change his/her mind.1

Note: If you were the real victim of abuse but you were convicted of domestic violence against your abusive spouse, the judge can consider any documented evidence of your history as a victim of domestic violence. With that proof, the judge can decide to not follow these guidelines and can still order your abusive spouse to pay you spousal support.2

For purposes of this law, a domestic violence misdemeanor is when a spouse commits a misdemeanor act of "abuse" (as defined by law).3

For felony convictions

If your spouse was convicted of a violent sexual felony or a domestic violence felony against you and you file for a divorce within five years of the conviction and of any time in prison, on probation, or on parole, you cannot be ordered to pay spousal support. Also, you cannot be required to pay any attorney's fees of the convicted spouse out of your separate property (but the fees can be paid from the community assets).4

For purposes of this law, a domestic violence felony is when a spouse commits a felony act of "abuse" (as defined by law).5

For purposes of this law, the following crimes are considered violent sexual felonies:

  • rape (as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262);
  • sodomy as defined in subdivision (c) or (d) of Section 286;
  • oral copulation as defined in subdivision (c) or (d) of Section 288a;
  • sexual penetration as defined in subdivision (a) or (j) of Section 289; or
  • rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.5

    If your spouse was convicted of attempted murder or solicitation of murder against you, the judge is not only prohibited from ordering you to pay any temporary or permanent spousal support, but you also the abuser is prohibited from getting any medical, life, or other insurance benefits or payments from you.6

    Note: If you were the real victim of abuse but you were convicted of of felony domestic violence or a violent sexual felony against your abusive spouse, the judge can consider any documented evidence that your abusive spouse committed domestic violence (as defined by the law) or one of the above-listed violent sexual offenses against you. With that proof, the judge can decide to not follow these guidelines and can still order your abusive spouse to pay you spousal support.7

    1 Cal.Fam.Code § 4325(a)(1), (a)(2)
    2 Cal.Fam.Code § 4325(b)
    3 Cal.Fam.Code § 4325(e)(1)
    4 Cal.Fam.Code § 4324.5(a)
    5 Cal.Fam.Code § 4324.5(b); Cal.Penal.Code § 667.5(c)(3),(4),(5),(11),(18)
    6 Cal.Fam.Code § 4324
    7 Cal.Fam.Code § 4324.5(c)