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Can I be denied spousal support if I’m convicted of a crime?
In some cases, yes. California is a “no-fault” divorce state. This means that, in general, evidence of specific acts of misconduct is improper and inadmissible in a pleading or proceeding for dissolution of marriage or legal separation of the parties.
However, a conviction for domestic violence or a violent sexual felony against your spouse changes the usual rules. Under California Family Code 4320 (a)(i), a court is required to consider documented evidence of domestic violence by the spouse seeking support, if the violence was committed against:
The spouse the support is being sought from, or
Either party’s child.
Such evidence can include (but is not limited to), a plea of nolo contendere (“no contest”) to domestic violence charges, and/or evidence of emotional distress resulting from any act(s) of domestic violence.
If you were actually convicted of domestic violence against your spouse, there is a rebuttable presumption that you are not entitled to spousal support from your victim. The presumption arises from “a legislative determination that victims of domestic violence not be required to finance their own abuse.”
The presumption applies if it has been less than five years since you were released from probation, jail/prison or parole in connection with your domestic violence conviction. The presumption can be rebutted by of your spouse’s history of domestic violence against you, or any other factors the court deems just and equitable.
However, there is no rebuttable presumption if you were convicted of a violent sexual felony against your spouse within a similar five-year period. Under Family Code 4324.5, “violent sexual felony” includes rape, sodomy, or forced oral copulation or sexual penetration.
In such a case, the court is completely prohibited under Family Code 4324.5 from granting you spousal support. Nor can your spouse be required to pay the attorney fees for your divorce lawyer out of his or her separate property.
Other remedies for a spouse who is the victim of sexual violence include moving the date of legal separation to the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date. The injured spouse is also entitled to one hundred percent of the community property interest in his or her retirement and pension benefits.
You are also not entitled to support if you ever attempted to murder (or solicited the murder of) your spouse (California Family Code 4324).
While domestic violence and violent sexual felonies are the only specific crimes that affect spousal support, the court may also take into account “any other factors the court determines are just and equitable.”
Although there are no reported cases interpreting this clause, a court might presumably use this clause to deny spousal support to someone who had committed another crime against a spouse.
The takeaway is that if you are married, you should consult with an experienced California criminal attorney before you enter a plea in a case in which the alleged victim is your current or former husband or wife.
Our caring California criminal defense lawyers understand that more is at stake than just your freedom when you are charged with a crime. If you or someone you know has been charged with California domestic violence, a sexually violent felony or another serious crime, we invite you to contact us for a free consultation to discuss spousal support and other collateral consequences of a felony or domestic violence conviction.
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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