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Kathy Minella

What is Domestic Violence?

Domestic violence has been called an epidemic in the United States and includes physical, sexual, emotional, and economic abuse. Each year over 12 million women and men in this country are victims of what’s referred to as “intimate partner violence.”

California is a no-fault state on divorce but there are instances where fault can be a factor, including a domestic violence conviction. Domestic violence can influence property division and child custody matters, too. It’s important to understand how California courts view domestic violence and how it is handled during a divorce case.

What is Domestic Violence?

In California, domestic violence as defined by the courts involves a minor or serious injury against a close family member or intimate partner. Under California’s Domestic Violence Prevention Act, special rules apply when dealing with domestic violence charges, including spouse and abuse and child endangerment.
“Violent actions” can include:

  • Physical and/or sexual assault.
  • Threats of harm, or threats to harm someone else.
  • Harassment and/or stalking.
  • Destroying the other person’s property.

Two people do not need to live in the same residence for domestic violence to occur. Any abuse by a spouse, former spouse, current or former cohabitant, someone the abuser has or is having a child with, or someone in a past or current dating relationship is considered a crime.

How the Courts View Domestic Violence

Not only is domestic violence considered a serious crime in California, it is aggressively prosecuted. Any violent or threatening act, even if the alleged abuser did not intend to harm the other person, can be grounds for prosecution under California’s domestic violence laws.

If police believe domestic violence has taken place they are mandated by California law to arrest the perpetrator. That is, if the officer has probable cause to think one person has abused a partner, spouse, or other family member, an arrest must be made regardless of gender or other factors like sexual orientation, and even if the person who was allegedly attacked says they do not want to press charges.

Domestic Violence Restraining Orders

In order to protect someone from physical abuse, harm, or threat of abuse or harm, courts will issue domestic violence restraining orders. There are four such orders in California:

Depending on which order is obtained, there will be actions the restrained person must comply with including not contacting the alleged victim, paying certain bills, moving out of a shared residence, and being denied the right to carry a gun. Violation of a restraining order comes with severe penalties.

Domestic Violence and Child Custody

Physical and legal child custody can be affected by domestic violence charges. California law has strict guidelines that determine how the law will apply in a specific case. In all cases, the courts strive to put a child’s safety first, devising a parenting plan that keeps everyone safe.

The Benefits of a Domestic Violence Attorney

If you or someone you know is facing domestic violence charges, or if you and/or your child are the victims of domestic violence, an experienced family law and criminal defense attorney can help you understand how the laws apply to your case. Talk to them about your concerns with respect to visitation, restraining orders, and other matters so they can fully represent your interests in court.

How Can I Impute Income To The Other Parent?

income

Under California law, both parents are equally responsible for the financial support of their children. When computing how much child support is owed or received, the court considers each parent’s income to be a key factor.

Some parents choose to deliberately reduce their income to avoid the responsibility of paying support, or to increase the amount of support the other parent is ordered to pay.

Unfortunately, the children become the victims of this behavior. The court is invested in doing what is in the best interests of a child, so often it will attribute – or impute – income to one or both parents before ordering support.

Imputed Income Defined

If the court imputes income to one or both parents it is, in effect, saying that is the amount the parent could be earning. The court then bases its award of child support on that income, not what the parent claims to be earning. Judges do this to make sure children are receiving an amount that ensures their needs are met – and to prevent a parent avoiding child support altogether.

For example, if a parent up until the divorce has been earning $75,000 per year and then suddenly claims they’re earning minimum wage, the court will ask for information to determine if the decrease was due to a parent trying to minimize his or her child support obligation.

When Courts Impute Income

If the court finds that the parent ordered to pay child support voluntarily quit work or deliberately lowered their income, the court may decide to ignore that change and use the most recent amount ($75,000 in our example) they were earning. The order for child support would then be based on that figure. California family courts look at three main factors when determining if income imputation is called for:

  • The ability of the unemployed or underemployed parent to earn income.
  • The opportunity for the unemployed or underemployed parent to earn income.
  • The willingness of the unemployed or underemployed parent to earn income.

If the court finds the parent has a legitimate case of job loss or pay reduction, it will not necessarily or immediately impute income to him or her.

How Do Courts Arrive at an Imputed Income Amount?

Courts look to a parent’s “earning capacity” when deciding how much income to impute:

  • Willingness to work is decided by looking at whether the parent is looking for a job, sending out his or her resume, or going for job interviews.
  • Opportunity to work looks at what, if any, appropriate jobs are available in the area.
  • Ability is usually determined by looking at a parent’s educational level, works skills, and employment history.

As evidence of a parent’s ability and opportunity to work, the court will look at various evidence.For example, it may use a vocational expert’s report or testimony and/or the most recent salary the parent was earning. If the court cannot arrive at an amount using these methods, it may impute minimum wage.

If you’re divorcing and believe your spouse should be imputed income for the purposes of child support, you may want to consult with an experienced and qualified California family law attorney to help you better understand your options.