Spousal Abuse and Spousal Support. When is one a defense against the other?by Stewart D. Jenkins on 10/03/14
Spousal Abuse and Spousal Support. When is one a defense against the other?
In an opinion issued September 10, 2014, the California Second District Court of Appeal considered an appeal by Mary from a Superior Court order terminating her non-modifiable spousal support 7 years after Judgment had been entered ordering her husband to pay her for life. Of real importance to the case was the fact that Mary’s husband had agreed to the non-modifiable support to pay Mary, and had stipulated that she was permanently disabled in 2004.
The California Legislature had adopted a new statute [Family Code § 4325] effective in 2002, however, which dictated that if one spouse was convicted of committing domestic violence against the other within five years before either filed to dissolve their marriage, that this fact raised “a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support” should not be made to the abusive spouse.
Mary had raised a number of defenses to applying the statute to terminate her spousal support. For instance, she had been convicted in 2000, two years before the new statute went into effect. The Court rejected her ex post facto argument – holding that requiring an abused spouse to pay a convicted abuser would be “unconscionable,” would “unjustly enrich” the abuser, would “force victims of abuse to remain dangerously entangled in the abuser’s web of violence and intimidation,” and would require “the abused spouse to finance his own abuse.”
Mary argued in various ways that her husband could not make a motion to terminate support he had agreed to pay two years after the law went into effect, and 10 years after he had signed the agreement to entry of Judgment requiring him to pay. The court held that the right of an abused spouse to be free from, or to be freed from, paying support to their abuser was so important a public policy right that it could not be waive. The fact that Mary’s husband had never asserted that right before did not deprive him to assert it now [Mary’s husband had argued he did not know about existence of a statute allowed him to avoid supporting his abusive spouse]. The Court reasoned that because it was against public policy to require a victimized spouse to pay support to a convicted abuser, it did not matter whether the Husband knew or did not know he had a right to oppose support or to terminate support whether agreed to or whether ordered.
Does this affect dissolution of marriage between every victimized spouse from a convicted abuser? Yes, but the case leaves open one potential exception that has yet to be defined by either the Legislature or by any Court case. And that Family Code § 4325 sets up a “rebuttable presumption affecting the burden of proof” that a convicted abuser should never receive spousal support. None of the Appellate Courts that have address when facts or circumstances might rebut or overcome the presumption.
Just as every case turns on unique facts, and every family navigates different circumstances, ultimately situations triggering a Family Code § 4325 will depend on careful analysis, full presentation of evidence, and insightful lawyering. For all the facts of Mary’s case, you can look up In re the Marriage of Kelkar (2014) ___ Cal.App.4th __, 176 Cal.Rptr.3d 905