TELL YOUR ATTORNEY IF THERE WAS ANY DOMESTIC VIOLENCE Your divorce attorney can only help you with the issues that he/she actually knows about. That is why you should tell your attorney what has been going on that led up to your decision to file for a divorce. Some things might not matter as much as you think, like the name of your spouse’s new mistress/boy toy, but other things could be relevant to all kinds of legal issues in your case. There may also be issues outside the scope of the divorce that you should think about. In the recent case of Boblitt v. Boblitt (2010) 190 Cal.App.4 th 603, when the wife raised issues of Domestic Violence in the divorce case that were relevant to the amount of spousal support (alimony) husband should pay she was not barred by principles of Res Judicata and/or Collateral Estoppel from later also suing in Civil Court to recover things like her medical bills and pain & suffering caused by the beatings she had suffered. (Res Judicata and Collateral Estoppel are legal doctrines that will often mean that you cannot go to Court twice to litigate the same set of facts, you get just one bite at the apple.) Domestic Violence can be relevant to child custody (See Family Code §3011(b), §3044(a)), spousal support (See Family Code §4320(i) &(m)), and if the Violence is ongoing you could get an Order that the other party stay away from you (See Family Code §6200 et. seq.) Domestic Violence might be clear, as when you go to Court with bruises on your body from being beaten, or it might be harder to prove, as when your spouse whispers into your ear while she thinks you are asleep that she will kill you – and you have no witnesses of the death threat. It might be the case that your attorney will decide not to litigate those issues, if the proof is hard or improbable, but if your attorney knows what they are dealing with it will help with the entire case. It has been my experience that perpetrators of Domestic Violence are much less likely to agree to fair settlement terms, and that normal settlement efforts could be a waste. Victims of Domestic Violence often keep trying to just be fair, and typically offer terms that are more than fair. The perpetrator keeps pushing for more than 50/50. Sometimes the victim will briefly get angry and ask for too much, but that phase usually passes quickly and the perpetrator is never worried by the brief outburst. The perpetrator will usually believe that they know how the victim thinks, and that they can bully and threaten their way into unfair settlement terms without the need to ever face the Court. Unfortunately, the perpetrators are often right about that. If you have been a victim of Domestic Violence the California Family Code is on your side, and the Courts will help you if you prove your case. The real battle is in just standing up instead of cowering down and letting the perpetrator get what they want. The patterns you established in your marriage, where you avoided being hurt more by always backing down, may be very hard to overcome and may be much harder and more complex to sort out than the legal issues in your case. In such a case, you should consider some counseling to avoid having fear drive all your decisions.
If you have been falsely accused of Domestic Violence then you should be worried that if the Court is tricked into believing that you are a perpetrator you will see your children less, pay more alimony, and likely pay more legal fees to the other party. You should work closely with a good divorce attorney to compile all the evidence you can of your innocence. Often, perpetrators will falsely accuse their victims of Domestic Violence. A good divorce attorney will inform you about the legal rules that apply to your case. You need to let your attorney know if there has been Domestic Violence. At the Law Offices of Thomas Chase Stutzman, A Professional Corporation, we strive to keep our clients fully informed regarding what the rules are and help them work through any bullying and/or threats from the other party if you are suffering from domestic violence.
Published on Jul 31, 2011
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