California’s “no fault” divorce law does not prohibit the court from considering evidence of fault when deciding the issue of spousal support.

Family Code §4320, the primary statute governing determination of spousal support orders in California, sets forth a number of factors that the court must consider when issuing a spousal support order.

To what extent the court can consider evidence of fault under Family Code §4320 was recently discussed in the In re Marriage of Schu (2016) WL 7104931 (CA-2(6)).

In the Schu case, Husband was found to have the ability to pay “whatever spousal support the court may order,” meaning he had ample income available for support.  There is no mention of Wife having any income; however, the trial court found she had sufficient assets from which she could support herself.  

On appeal, Wife argued that the trial court abused its discretion by allowing Husband to introduce evidence of fault and by using that evidence to deny her support.  In making her argument, Wife relied on Family Code §2335 which states “Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and admissible.”

The appellate court confirmed the trial court’s decision and found that there is an element of fault in the award of spousal support, and such element as set forth in Family Code §4320 comes within the exception language of Family Code §2335 “Except as otherwise provided by statute…”

Spousal support is not mandatory.  As stated in Schu, “The facts and equities in a particular case may call for no spousal support or very short-term support.”  Family Code §4320 specifically provides that the court “shall consider all of the following circumstances…” (emphasis added), one of which is domestic violence.  

Family Code §4320(i) directs the court to consider documented evidence of domestic violence perpetrated between the parties or by either part against either party’s child.  The trial court found that Wife’s conduct (providing the parties’ minor son with alcohol and forcibly cutting their daughter’s hair qualified as domestic violence).  The trial court went further and found that Husband and the children had been subject to emotional abuse for years.

Family Code §6303(a) states that “abuse” for purposes of the Domestic Violence Prevention Act includes any behavior that could be enjoined pursuant to Family Code §6320.  Among the behaviors listed in Family Code §6320 is “disturbing the peace of the other party.”  Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 found that “disturbing the peace” of the other party means “conduct that destroys the mental or emotional calm of the other party.”  Based on the definition from Nadkarni, the trial court in Schu found that Husband and children had been subject to emotional abuse for years, and thus Family Code §4320(i) applied (consideration of domestic violence in ordering spousal support).

Wife argued that the definition of domestic violence adopted by the trial court was too broad as it allowed conduct such as extramarital affairs, refusing to help around the house, spending too much money, or refusing sex could all now be considered domestic violence.

The appellate court dismissed these arguments as they clearly paled in comparison to Wife’s conduct in this case, which resulted in Wife pleading guilty to seven counts of unlawful sexual conduct with a minor and a six-year prison sentence.

While the appellate court does not consider what role “fault” of a party may have on an award of spousal support in the ordinary case, the trial court in Schu was affirmed.  The appellate court found that in the Schu case the trial court was more than justified in denying Wife spousal support under Family Code §4320(n), which requires the court to consider “any other factors the court determines just and equitable.”  

In addition to the issues of fault, the trial court also took into account the “balance of the hardships to each party” under Family Code §4320(k).