Spousal support is an issue commonly litigated in a divorce in San Diego. Carol Abar filed for divorce after sixteen years of marriage, when she learned that her husband had sexually assaulted her daughter. In a hearing on spousal support (commonly referred to as alimony in San Diego), a California family court ordered Ms. Abar to pay $1,300 per month in support to her daughter's abuser. Although Ms. Abar presented evidence to the court that her husband molested her daughter for years, the court determined that an award of spousal support was appropriate in the divorce case based on the parties' relative income.
In 2012, Ms. Abar's ex-husband, Ed Abar, plead guilty to the rape of her daughter and was sentenced to approximately one year in jail. At that time, Ms. Abar had paid about $22,000 in spousal support. While Mr. Abar served his sentence, the family court temporarily stopped payment of support. Recently, Mr. Abar was released and is now requesting $33,000 in arrears. Mr. Abar is also requesting the court to order Ms. Abar to resume support payments.
It is clear that such a spousal support award is an outrageous miscarriage of justice. In order to tighten the gaps in the California Family Code which may allow perpetrators of domestic violence to collect spousal support, Governor Jerry Brown signed more stringent legislation last year. As divorce attorneys in San Diego are aware, if at the end of a case either party has requested spousal support, the court will weigh 14 factors which are listed in Family Code §4320. Upon consideration of these factors, the court will determine how much spousal support to award in a divorce case, if any. Family Court judges were always required to consider documented history of domestic violence between the parties to the divorce, and were also required to consider criminal conviction of an abusive spouse in making a decision. However, the new legislation added a different twist to those old provisions.
Newly enacted Family Code §4324.5 states that "in any dissolution of marriage where there is a criminal conviction for a violent sexual felony...an award of spousal support to the convicted spouse from the injured spouse is prohibited". This code section applies as long as the divorce is filed within 5 years of the conviction, time served, end of probation or end of parole. Now, a San Diego family court judge will have no discretion to make an award of spousal support in a divorce matter where the supporting spouse was a victim of a violent sexual felony perpetrated by his or her spouse.
Despite this added layer of protection for spouses, currently there is no family code provision preventing child abusers from receiving spousal support. The family code has evolved since the first support order was made in the Abar divorce case, but it seems that it will not be able to offer Ms. Abar any relief from her obligation to support her ex-husband.