When is “No-Fault” Not “No-Fault”?

California divorce litigants push ‘emotional abuse’ allegations to their limits
Published on Jul 28, 2020

It is a well-known fact that California is a “no-fault” state when it comes to divorce. In fact, it was the first state to create such a definition. Most states are now “no-fault,” with only a few exceptions, using various factors to decide settlements in a divorce case.

In the latest episode of his video series, “Exhibit A,” Pasadena family law attorney Donald Schweitzer enlists the help of two of his attorneys, Mane Khachatryan and Mane Hakobyan, conveniently referred to as “Mane K,” and Mane H,” in dealing with the subject of emotional abuse in divorce cases.

As Mane K explained, “A no fault-state means if you want a divorce, you get a divorce. You don’t have to really prove anything other than, ‘Hey, I want a divorce. We don’t get along anymore.’ Which is why you check off the box in California that says you’re getting a divorce because of irreconcilable differences. A fancy way of saying ‘We don’t get along anymore.’”

Some states however, still find fault in divorce cases and use the concept of “mental cruelty” or “emotional abuse” in deciding damages, Mr. Schweitzer said.

Schweitzer pointed out that California has been a no-fault state for a long time. There are two previous appellate decisions discussing mental cruelty.

The first case is the marriage of Nadkarni, which Mane K discussed.

“This is an interesting case,” she said. Khachatryan explained that in this particular divorce battle, the husband hacked into the wife’s email address, and found several emails regarding the children’s custody arrangements. Other emails opened were to her financial advisors and attorneys.

“So she alleged abuse based on that,” Khachatryan said. “The wife alleged that this is abuse and a disturbance of my peace,’” explained Khachatryan.
“The Court had to really flush out what abuse meant in this situation,” said Mane K, and what ‘disturbance of the peace’ meant.”

The Court looked at the construction of that word, said Khachatryan, and found that to “disturb” means to “destroy any peace, and freedom from anxiety.” Any conduct that destroys the mental or emotional calm of the other party is disturbance of your peace, she explained. Such disturbance is covered in the state’s Domestic Violence Prevention Act (DVPA).

Another factor, however, was that in hacking the emails, the husband found out that the wife was not in fact in the US, but was in India.

The husband also argued that he had not hacked into the email account. He knew the password, because he had created the account.

“The court really spent the time talking about what is disturbing the peace, because the husband was alleging that this was not domestic violence. It’s not within the meaning of the DVPA,” said Schweitzer.

Then things get a little confusing.

As Schweitzer noted, “The parties were clearly separated if not divorced, and so he had no business looking into her email. It was kind of an invasion of privacy.”

Schweitzer continued, “They’re not living together. They’re violating each other’s rights, and what he (eventually) did, (showed) he was not one of the brightest guys. He attached her email to his declaration as an exhibit to prove his point. She then used it against him to get the restraining order.”

Another appellate decision discussed was Rodriguez v. Menjivar. Menjivar for short.

As Mane K explained the case, the girlfriend, Menjivar, was beaten up by her partner. She ultimately tried to escape the relationship, but the boyfriend was violent and controlling.

He pleaded with her to come back, promising that he would change. She eventually returned, and then in the middle of the dispute, she became pregnant. “Meanwhile he’s still beating her”, Khachatryan said.

The controlling behavior continued. When the girlfriend wanted to take community college classes, he enrolled in five of her six classes and then kept repeatedly texting her throughout her sixth class.

She went to Court and got a temporary restraining order. During the hearing for a permanent restraining order, the trial Court said, “He hasn’t abused you in six months. So there really is no abuse,” explained Khachatryan.

“He moved from his house,’ said the court. “You guys live farther apart. So there’s no abuse,” Mane K recalled.

On appeal, the Court noted, “We don’t look at what happens in the future or the likelihood of abuse in the future. We judge these cases based on what happened in the past… and there was substantial abuse,” explained Khachatryan.

While the trial court actually said there was substantial abuse in this case and still denied her domestic violence restraining order, Khachatryan said, the appeals court struck that down and said, “No, you don’t look at the future. You look at what has happened”

“What this case (Nadkarni) has done,” said Mane H, “is expand the definition of what constitutes domestic violence.” Hakobyan explained that the case may have also, however, had a negative impact on the judicial system, with regard to people filing frivolous, domestic violence cases.
The case may also have taken the courts back to a reexamination of whether or not California really is a “no-fault” state.

Hakobyan recalled a recent domestic violence restraining order hearing where the husband and wife had had a very “specific” way of communicating with each other.

As she told Schweitzer, “They used a lot of vulgarity on both ends of the marriage. They cursed at each other, they texted each other nasty messages. This was just how they were, it was their relationship, and it worked for them. It went both ways.”

Unfortunately, said Hakobyan, one of the parties documented this, and the other party didn’t. The party who documented text messages of the husband sending nasty things to her was able to get a restraining order.

“Not because there was any physical violence, any threats of physical violence or even any controlling behavior necessarily,” she said, “but because that disturbed her peace, even though that was the norm in their marriage and that’s how they communicated with one another.”

Schweitzer also took note of the fact that in many cases now, even before a divorce is filed, there is a request for a restraining order based upon “controlling behavior.”

“And it seems that the trial courts are accepting evidence of nastiness during the marriage,” he added.

Schweitzer asked, what are some of the consequences that come as a result of people now being able to go into court and obtaining a restraining order based on emotional abuse?

“Not domestic violence, not threats,” said Schweitzer, “but nasty messages, text messages, where someone calls their partner a bunch of names, you know, over a six month period.”

“What are the potential consequences of that,” asked Schweitzer, “especially if the wife prevails in court?”

Hakobyan responded that the results of losing such a case in court can be “very detrimental” to the person who loses, and could affect their livelihood.

“It could affect their career; it could cause them to lose their license. Most importantly, it’ll affect the time they have with their kids because depending on the length of the restraining order, there is a presumption on the party who holds the restraining order, that the other partner cannot have joint custody of the children until they overcome that presumption.”

Whether it’s a one-year, three-year, or five-year restraining order, the order will definitely affect the custody arrangement, the amount of time that a parent has with the children, based on sending nasty text messages.

“It affects you not only financially, but most importantly,” said Hakobyan, “it affects the relationship you have with your kids.”

Schweitzer lamented those kinds of rulings, saying, “I think that we’re starting to really see a pattern here of people preemptively, filing for divorce, and applying for these restraining orders that are unfortunately being granted. When there’s really no real evidence of any sort of physical or mental or any controlling behavior.”

Schweitzer continued, “At the end, it’s the kids who are really affected by it and I think that definitely was not the purpose behind the case law and that wasn’t the purpose of the legislature when it enacted the act. So I think that’s really unfortunate.”

Schweitzer discussed another recent case, where a wife, mother-in-law and his father-in-law physically accosted a husband, and the evidence was caught on video. The defense was that the husband was engaged in controlling behavior throughout the marriage.

As Schweitzer said, “it was like what they did was okay, because he was being obnoxious and he wouldn’t give back a cell phone.”

The trial court denied his restraining order against his wife and in-laws because of the allegation of controlling behavior.

In another situation, asked Schweitzer, is it abuse when a wife who is constant nagger heaps emotional abuse on her husband with nasty texts and constant name-calling?

“This woman raised their kids,” said Schweitzer. “She was the one that took care of all the household responsibilities for 30 years, and then in this hypothetical case she’s even sacrificing her own career because she wanted him to go out and slay dragons and make something for the family.

“But she was a nagger,” Schweitzer continued, “She was somebody that was constantly calling them names and stuff, and he’s got the text messages to prove it. Is that really how we want to solve these cases by saying you can’t receive spousal support because you’ve been screaming at him for 30 years?

Another factor to consider in family law matters, said Mane K, is that some of your clients don’t have enough money to go on appeal.

“That’s why sometimes cases don’t get really flushed out,” she said. “And there’s not a lot of explanation because things change at the trial level that are not necessarily reflected at the appellate level, because, if your clients spend a lot of money doing the divorce and fighting the domestic violence, they might not have enough, unfortunately, to take the matter on appeal.”

“But,” she offered reluctantly, “In that particular scenario, I hate to say it, it depends. A part of me says that in any situation when someone is really manipulative, and they’re texting you constantly, and cursing at you constantly, and maybe manipulating you to do something you don’t want to do, we definitely want to see where we could get domestic violence on that.”

“But if she’s nagging and maybe she says a word here and there, I’m not too sure if there’s evidence strong enough for domestic violence. But this is the land we’re in right now.”

Khachatryan is discouraged at the state of so many divorce cases alleging emotional abuse.

“I think that what’s happening now is really a disservice to the drafting of the DVPA, the Domestic Violence Prevention Act,” she said. “And it’s really a disservice to all of the women and men that have been abused in extreme measures.”

“If the court is trying to make a ruling to say you cannot use profanities in your marriage,” she continued, “that’s a bigger conversation of whether the court has jurisdiction to do that, or whether we should be doing that, or whether we’re inserting some sort of morality into society by these rulings.”

Schweitzer summarized, “There’s no easy answer for these things. We want to protect victims of domestic violence and domestic abuse, but at the same time, we want to make sure that we’re not trampling over people’s rights and hurting otherwise innocent people.”

However, regardless of future hearings or decisions or the strength of your case, all three attorneys agreed: evidence will win the day. Gather up your documents, cell phone photos, and yes, text messages. Evidence is what wins cases.

The Law Offices of Donald P. Schweitzer are located at 201 South Lake Avenue, Suite 800. Pasadena. www.pasadenalawoffice.com.

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