I'm going through a divorce and I'm requesting spousal support. After I asked for a separation, my wife went crazy and has attacked me/other people/stolen my things on several occasions. Last year after she moved out, she stole my dogs from my house and had them at her apartment. She wouldn't give them back. I went to her apartment to get them back and she wasn't there, so I broke the lock on her door and took my dogs (I was kind of bitter so I poured water on her furniture and broke a toothbrush (which she stole from my house the week before after destroying hundreds of dollars in property)). Anyway, bad decisions on my part. She called the cops on me, and I've never called the cops on her. I pleaded no contest to a misdemeanor vandalism charge, but it was in family court and I'm required to take a 52 week batterer's course. The charge itself doesn't say anything about domestic violence, but my public defender says it counts as domestic violence because of the breaking of the toothbrush.
That's a stretch. But there is no way to tell how a judge will rule, as there are many factors in the code section.
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Technically, damaging 'property' is statutorily DV, but the judge should take into consideration that it was only a toothbrush. Testify to the basis of the incident and make your request because although there is a presumption prohibition, it can be rebutted: Here's the code section:
California Family Code section 4325 provides:
(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made. (b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption. (c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.
First of all, you cannot be prosecuted for violence in family court. You need to find out what has really happened here. It seems to me that she got a TRO and RO in family court - the vandalism should have taken place in criminal court. There are the factors in FC 4320 which apply directly - other factors may also apply:
(i) Documented evidence, including a plea of nolo contendere, of
any history of domestic violence, as defined in Section 6211, between
the parties or perpetrated by either party against either party's
child, including, but not limited to, consideration of emotional
distress resulting from domestic violence perpetrated against the
supported party by the supporting party, and consideration of any
history of violence against the supporting party by the supported
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) 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 duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage. However, nothing in this section is intended
to limit the court's discretion to order support for a greater or
lesser length of time, based on any of the other factors listed in
this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4324.5 or 4325.
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