How Domestic Violence impacts Spousal Support, Child Support & Attorney Fee Awards


Some of the most common questions we receive during a domestic violence proceeding relate to how money (including spousal support, child support, and attorney’s fees) will be impacted by the presence of a finding of domestic violence in a case. The answers always depend upon the specific facts and circumstances of each case; however, we want to briefly cover the basics of this topic in today’s post. 

Who Pays the Attorney’s Fees in a Domestic Violence Case? 

 The simplest place to start is by addressing attorney’s fees. California Family Code Section 6344 states:

(a) After notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.

(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay.

The key here is that it is the prevailing party in a domestic violence restraining order request that may have their fees paid. This means that either party may be required to pay fees:

  1. If a court issues a restraining order after a hearing, the restrained party will be required to pay the reasonable attorney fees of the protected party.
  2. If the party seeking the restraining order fails to meet their burden of proof, and their request is denied, then the court will require the requesting party to pay the reasonable legal fees of the responding party.

The court must then analyze: (1) the reasonability of the attorney fee request (2) the ability of the parties’ to pay the legal fees. The language in this statute can be confusing because the statute says that the court “shall order” and then places restrictions on the attorney fee order. Prior to issuing an order for attorneys fees the court must determine if the prevailing party cannot pay their own fees, if the fee request is reasonable, and if it will cause the paying party harm – or be unduly burdensome – to pay their fees. Often the court has before it two parties who each have legal representation, so the court may be evaluating if a party can pay their own fees, and pay the fees of the other party. 

Important: fees will not be ordered unless they are properly requested. If you have not requested an attorney fee order in your request or response to a restraining order, you can notify your judicial officer and file a motion after resolution of the matter; however, it is best practice to include your request for fees with your initial application for a restraining order. 


Who Pays Child Support in a Domestic Violence Case? 

If the individuals in a domestic violence request have a child(ren) together, then the court may order child support payable by either party.

If the party requesting child support wants an order for child support, the requesting individual must mark the box for this request and submit their income and expense declaration with their original request. 

  1. The court cannot grant a request for child support unless the other party has had notice of the request and an opportunity to be heard on the request
  2. The court cannot grant a child support order based solely upon the initial submission to court, but there must be a hearing to determine if a child support order is appropriate. 

As part of the court’s analysis, the court is obligated to consider, 

“…whether failure to make [a child support order] may jeopardize the safety of the and the children for whom child support is requested.” 

 This analysis must include evaluating safety concerns related to the financial needs of the protected party and the children. Cal.Fam.Code §6341(a). 

IMPORTANT NOTE: Child support orders will outlive an expired restraining order. If your restraining order includes child support orders, and that restraining order expires, the child support orders are still in effect and failure to pay that child support will result in the accrual of arrears and interest.  

Who Pays Spousal Support in a Domestic Violence Case?


The application of the below topics are fact dependent. For example, you cannot receive spousal support unless there is a marriage or domestic partnership. The court cannot divide property unless there is a marriage or domestic partnership and a pending dissolution (divorce) action. Intimate partner violence impacts spousal support in many ways. 

Just like child support and attorney fees legal procedures, the request for spousal support must be made properly: in the initially filed request and with the correct supporting documentation. 

SCENARIO 1: The spouse requesting protection is also requesting spousal support. 

In this scenario, the court is required to analyze: 

“…whether failure to make [a child support order] may jeopardize the safety of the including safety concerns related to the financial needs of the . ” Cal.Fam.Code §6341(c).

In a request for a restraining order, the court may issue other orders that will impact the financial obligations of the restrained party.

For example, the court has the authority to make the following orders:

  1. Require the restrained party to leave the marital (or shared) residence.
  2. Require the restrained party to leave the marital (or shared) residence and continue paying the rent, mortgage, utilities, or other expenses related to the home.
  3. Require the restrained party to continue paying for the cell phone of the protected party.
  4. Require the restrained party to continue paying for other monthly expenses as the court deems proper and just, and necessary to protect the safety and wellbeing of the protected party.

SCENARIO 2: The person asking for support has been convicted of felony domestic violence. 

In California, when a spouse or child is subjected to intimate abuse, and the abusive spouse or parent was convicted of a felony, it is often presumed that the abused spouse does not have to pay spousal support to the perpetrator of domestic violence. 

This presumption may be rebutted as the court is authorized to  

“…consider documented evidence of a convicted spouse’s history as a victim of domestic violence… perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.

Essentially, our state legislature and courts recognize the findings of researchers and academic literature that have connected convictions of women for domestic violence with what is known as “battered women’s syndrome” or “intimate partner battering.” 

What is “Battered Women’s Syndrome” and “Intimate partner battering?

These conditions is issues presents themselves itself when a woman is convicted of causing bodily injury or death to an intimate partner, but has evidence to establish that:
1) she was actually the victim of domestic violence,
2) that the person she harmed was the primary aggressor or instigator of the violence,
3) and that the woman’s lashing out in violence was connected to a moment when she had taken enough and responded with violence as a form of self-defense to stop the perpetration of abuse upon them. 

According to the ACLU, women who kill their partners will spend an average of 15 years behind bars, while men who kill their female partners serve much shorter sentences – on average between 2 to 6 years  despite the fact that women’s violence against partners is more frequently tied to their own suffering of intimate partner violence.      {**It would be great to explain what the syndrome is, because this section leaves me wondering about it**}

For this reason, the court will always consider any evidence showing that the person convicted of felony domestic violence was also subjected to intimate partner violence by the requesting party. 

The court that receives any such evidence will make an order regarding spousal support after

 1)  considering all evidence related to the presence of domestic violence, including 

 2) evidence that the convicted spouse was the victim of intimate partner violence. 


SCENARIO 3: A spouse requests spousal support, and there is no restraining order—but there is a history of domestic violence in the relationship.

In any request for spousal support, whether temporary or long-term, the court must consider the following:

All documented evidence 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:

(1) A plea of nolo contendere.

(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.

(3) Any history of violence against the supporting party by the supported party.

(4) Issuance of a protective order after a hearing pursuant to Section 6340.

(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.

Even without a restraining order, the courts must consider the presence of intimate partner violence in all requests for support, regardless of the duration of support. Fam.Code Section 3600. 


Commonality: To make an order for spousal support, child support, or any request for attorney’s fees, or an order requiring the restrained party to continue covering any of the other monthly expenses, the court must evaluate the income and monthly expenses of both parties. 


In summary, the California courts look at domestic violence as a critical factor in their decision-making processes—especially when it comes to legal money matters such as who should pay the attorneys fees, child support and spousal support. 

The importance of understanding how these rulings are made cannot be taken lightly because the future well-being of individuals—and their chances to live happy and healthy lives—are at stake. This is why we believe in educating our clients and the public about the California legal system. As family law attorneys serving the residents of Santa Clara County, we see on a daily basis how domestic violence impacts families emotionally, physically and financially. And by providing this information through our legal blog, we can at least help the community understand what they need to do to ensure their own safety, security and well-being. 


Legal Disclaimer: The materials contained on this website have been prepared by Gomez Edwards Law Group, LLP, and are intended for informational purposes only. This website contains general information on legal issues and is not a substitute for legal advice from a qualified attorney licensed in the appropriate jurisdiction. While we attempt to maintain information on this website as accurately as possible, the materials and information may contain errors or omissions, and may be out-of-date, for which we disclaim liability. Gomez Edwards Law Group, LLP expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this website. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Translate »