Whether permanent spousal support will be awarded is within the discretion of the family court, so long as the court’s decision is guided by the consideration of the 14 factors found in Family Code 4320. One of the most determinative factors are convictions for domestic violence, attempted murder, or violent sexual felonies.
Conviction for Domestic Violence or Attempted Murder
There is a rebuttable presumption against awarding spousal support to the abusive spouse when one spouse has been convicted of domestic violence against the other spouse within five years of the filing of the dissolution proceeding. However, this presumption may be rebutted by evidence.
A spouse who has been convicted of attempting to murder the other spouse is prohibited from receiving any temporary or permanent spousal support.
Criminal Conviction for Violent Sexual Felony
The following shall apply when there is a criminal conviction for a violent sexual felony perpetrated by one spouse against the other spouse:
- An award of spousal support to the convicted spouse from the injured spouse is prohibited
- Where economic circumstances warrant, the court must order the attorney fees and costs incurred by the parties to be paid from community assets. The injured spouse cannot be required to pay any attorney fees of the convicted spouse out of his or her separate property.
- At the request of the injured spouse, the date of legal separation shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances justifying the earlier date.
- The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
In this case, an “injured spouse” means a spouse who has been the victim of a violent sexual felony for which the other spouse was convicted.