The Role of Fault and Abuse in Determining Spousal Support

You may have heard that California is a “no fault” divorce state. However, one spouse’s “fault” may be considered in certain circumstances, such as in the determination of spousal support where one spouse has committed abuse. In fact, in determining spousal support, California courts must take into consideration acts abuse against the other spouse and/or the children.[1] California recognizes a broad definition of “abuse,” including not just physical abuse, but also sexual abuse, emotional abuse, stalking, and harassment, among other forms of abuse.[2] Should the abuse result in a criminal conviction for an act of domestic violence, there is a rebuttable presumption against any award of temporary or permanent spousal support to the abusive spouse.[3] A criminal conviction for a violent sexual felony perpetrated by one spouse against the other precludes an award of spousal support to the convicted spouse.[4]

In the recent case of In re Marriage of Schu,[5] Genise Gomez began a 7-year sexual relationship with one of her son’s friends, S., when he was just 13 years old. Gomez would provide the parties’ minor son and his friends with alcohol, and show them pornography. Gomez then began having a sexual relationship with S., and refused to allow him to end the relationship for seven years. The parties’ three children had suspicions about her relationship with S., but were not entirely aware of the abuse. After becoming concerned that the relationship was being exposed on social media, Gomez forcibly cut off a chunk of her daughter’s hair in order to coerce her to provide the Facebook password of S.’s sister. When her daughter began cutting herself and asked her mother to take her to a counselor, Gomez refused, saying that “they would take her away.” Eventually, Gomez pled “no contest” to seven counts of unlawful sexual conduct with a minor, and was sentenced to six years in prison. Immediately after sentencing, her husband, Donn Schu, filed for divorce.

After being released from prison, Gomez requested spousal support. The court denied her spousal support, finding that she had psychologically damaged all three children through her actions, and assaulted the daughter. The court found that California’s policy in favor of “no fault divorce”[6] does not prevent a court from considering acts of abuse in a spousal support proceeding.

If you have questions about how fault or abuse may affect a spousal support order in your case, please do not hesitate to contact ADZ Law, LLP.

[1] Cal. Fam. Code §4320(I), (m)
[2] Cal. Fam. Code §§6203, 6211
[3] Cal. Fam. Code §4325
[4] Cal. Fam. Code §4324.5
[5] In re Marriage of Schu [Schu II] 16 DJDAR 12067 (12-6-16) (DCA 2)
[6] Cal. Fam. Code §2335

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