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Posted on January 17, 2017 in Alimony,Spousal Support

The California Court of Appeal recently published a new opinion clearly stating that courts may consider bad behavior with regard to spousal support orders. In the case of In re Marriage of Genise and Donn Michael Schu, Jr., the wife (Genise) apparently had a sexual relationship with one of her child’s friends while the child was still a minor. In addition, Genise cut off her daughter’s hair as punishment when her daughter found out, and caused her daughter and her other children to suffer emotionally. Genise pled no contest to seven counts of unlawful sexual conduct with a minor and she was sentenced to six years in prison.

California is a no-fault divorce state. This means that a person requesting a California divorce does not have to prove the other party did something wrong to get divorced. The vast majority of divorces are granted by the court on the basis of irreconcilable differences between the parties. Irreconcilable differences can be just about anything. Consequently, Donn Schu did not need to prove that his wife was having sex with a minor child during the marriage or that she committed acts of domestic violence in order to get a divorce.

Because California is a no-fault divorce state, the policy of law in family court is that in a general sense bad behavior does not matter. Under Family Code § 2335, evidence of specific bad acts of misconduct is improper and inadmissible. Judges do not consider bad acts when deciding whether or not to divorce a married couple.

In this case, Donn Schu, Jr. (Donn) offered up the evidence of his wife’s bad behavior, in particular domestic violence, for the court to consider on the specific issue of spousal support. Genise opposed Donn’s use of bad behavior against her by citing Family Code § 2335. The trial court disagreed with Genise and Genise’s request for spousal support was denied. On appeal, the court said that Family Code § 2335 does not stop a person from offering evidence of specific bad acts that may otherwise be considered for the determination of spousal support under Family Code § 4320.

Under Family Code § 4320, there are a wide variety of factors that the court must consider when making spousal support orders. The “4320 factors” include things like the age and health of the parties, the length of the marriage, need and ability to pay support, the marital standard of living, and other considerations.

In this case, the trial court denied Genise’s request for spousal support under Family Code section 4320, subdivisions (i), (m), (n), and (k). The court’s focus was on subdivision (i) regarding domestic violence, which states:

(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

The trial court concluded that § 4320 (i) applies in this case because Donn and the children had been subject to emotional abuse by Genise for years.

Additionally, the trial court also relied on § 4320(n) as a “separate and independent ground” for denying Genise’s spousal support request. Section 4320(n) requires the court to consider any other factors that the court determines are just and equitable. Here, the appellate court agreed with the trial court’s reasoning. Essentially, the appellate court said that the trial court acted well within its discretion in denying Genise’s request for spousal support.

Please contact Scott Family Law by calling 858-974-4900 to schedule a consultation appointment with our family lawyers today. Attorney James Scott been practicing in San Diego County, California, since 1981. Mr. Scott is a Certified Family Law Specialist with many years of experience in all family law matters including spousal support.