In addition to Civil Harassment Restraining Orders (“CHRO”) and Domestic Violence Restraining Orders (“DVRO”), since 2016 California has a third type of protective order, the Gun Violence Retraining Order (“GVRO”). While Civil Harassment Restraining Orders are governed by California Code of Civil Procedure, and Domestic Violence Restraining Orders are governed by the Domestic Violence Prevention Act, Gun Violence Restraining Orders are governed by Section 18150 of the Penal Code. Unlike the first two types of restraining orders, which require specific conditions as to parties staying away from residences, places of employment and other locations, the GVRO only addresses a party’s right to own or possess firearms or ammunition.
In addition to being a limited type of restraining order, there is a limited class of people who can apply for a GVRO. The class of people who can apply for a GVRO are immediate family members, who could be spouses, parents, children, stepchildren, in-laws, or a former member of the household who had resided at the location for the last six months. There is an exception to this requirement, however, that if a party does not have the necessary relationship with the at-risk party, they can notify law enforcement, who can then in turn potentially apply. As of 2019, the City Attorney of San Diego had successfully obtained over one hundred Gun Violence Restraining Orders, one of the highest levels in the state of California and removed over two hundred and sixty nine guns from such individuals.
Like the other types of restraining orders, an applicant for a GVRO must prove that the restrained party poses a significant risk, either to themselves, or third parties. While the law was enacted to remove firearms from potentially unstable individuals, it is worth noting that this type of remedy also exists with other restraining orders. For example, a party that is subjected to domestic violence – be it physical, verbal, or other, and applies for a DVRO through the Court can ensure that the restrained party relinquishes whatever firearms they have access to through the DVRO process.
As always when discussing domestic violence or potential gun violence, it is important to note that if you are being abused by a partner of any sort, you should stop reading this blog and contact the appropriate authorities. Similarly, if you feel that a party who has access to or has firearms is a threat to their person or others, one should also contact the appropriate authorities. Given the nature of the relief requested, Gun Violence Restraining Orders are serious business, and a serious matter that one needs to be prepared for to obtain the relief that they want. If you have questions about them or other restraining orders, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any GVRO questions you may have to protect your personal safety.
One of the most serious issues that faces people that are dating, engaged, or married is that of domestic violence. Pursuant to studies conducted by the Center for Disease Control, one in four women (25%) and one in seven men (14%) have been the victim of severe physical violence by an intimate partner in their lifetime; and even more disturbing, two-thirds (66%) of female victims of stalking were stalked by a current or former intimate partner. Bringing this closer to home – San Diego County - in 2017, there were 17,306 domestic violence incidents reported to law enforcement in which was a four percent increase from the prior year. While the statistics are not yet available for 2018 it is likely that such numbers will be at the same level or a slight increase. As always when discussing domestic violence, it is important to note that if you are being abused by a partner of any sort, you should stop reading this blog and contact the appropriate authorities.
With respect to remedies for domestic violence, the first and most important remedy is as listed above to contact the authorities, file a police report, and wait for the District Attorney to take action under the appropriate provisions of the penal code. The second – or equally important remedy is to obtain a Domestic Violence Restraining Order (“DVRO”) from the Family Court. DVRO’s are governed by the Domestic Violence Protection Act, which defines abuse as: 1) intentionally or recklessly causing or attempting to cause bodily injury; 2) sexual assault.; 3) placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; and 4) engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party.
In addition to the abuse component, one must prove that an intimate or familial relationship exists between the parties, or else the relief requested is more appropriately a Civil Harassment Restraining Order (“CHRO”). It is always worth noting that the party requesting the restraining order bears the burden of proof, meaning that they must prove that the abuse occurred. Under the DVPA, restraining orders can be granted on a permanent basis for a term between a number of months and five years. This order can later be renewed, depending on whether there has been additional or continuing conduct after the initial order has been granted.
Like many things in the realm of Family Law, a number of rumors continue to exist about domestic violence restraining orders. The first and most prevalent rumor is that a restraining order will only be granted if there is physical violence between the parties. While the element of physical violence is one that likely ensures that a protective order will be granted, it does not need to occur for an order to be granted. As discussed above, a party need only demonstrate that they have been harassed, or that their peace has been disturbed by a number of means, including that of verbal or online abuse. The second and most prevalent rumor is that restraining orders are not granted for men against women, or in same sex relationships. In 2019, a restraining order may be granted to protect any party irrespective of race, gender, age, or any other factor as long as they meet the legal requirements under the law.
Given the nature of the relief requested, Domestic Violence Restraining Orders are serious business, and a serious matter that one needs to be prepared for to obtain the relief that they want. There also can be many forms, depending on what type of relief one is seeking for themselves, and potentially their children. If you have questions about Domestic Violence Restraining Orders, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any DVRO questions you may have to protect your personal safety.
One of the practical issues that occurs incident to dissolution is “information leakage”. Information leakage occurs when the other side - either soon to be ex-husband or wife - has texts, e-mails, voicemails, social media posts, or other information that they should not have access to. Generally in such cases, clients want to know how the other party received such information, and are upset that the other side has such information. While it should not be shocking, the source of such information is usually shared passwords.
In a recent Pew study, it was found that sixty-seven percent (67% ) of couples share at least one online account password and twenty-seven percent (27%) have shared their passwords. While password sharing is common, and in theory, a good practice for healthy, happy relationships, given that half of all marriages end in dissolution, there are plenty of examples of how sharing passwords in an unhappy relationship can be a bad idea.
If one is absolutely certain that they are filing for dissolution, or is already in a dissolution or paternity action, it is imperative that one change their voicemail, e-mail, and social media passwords for their own accounts. While this may be somewhat frustrating for the other party based on past conduct, the important thing to remember is that those passwords were shared in the past - and based on present actions of separating, it is no longer practical to share such items. As social media screenshots are frequently featured as evidence in Family Law actions, it makes no sense to volunteer items to the other side. Similarly, if you are the party that pays for streaming services such as Netflix or Amazon Prime, it is prudent to change such passwords as well to prevent any type of abuse of the service.
Changing passwords for personal items is important, and likely needed, but is also important to remember that one cannot take further measures that would presumably violate the automatic restraining orders (ATROS) that goes into effect on the filing of a dissolution. It is also important to note that one cannot “freeze out” the opposing side from bank account or credit account information, as each spouse - even in a divorce, owes the other side a fiduciary duty.
Similarly, with respect to passwords, you should secure your own gadgets and ensure your security questions have been updated to questions that another party would not know. Ensure all social media privacy settings are up to date and make sure you do not post anything inflammatory or incriminating. One should also make sure that you are not surreptitiously being tracked by third party applications, such as Apple’s Find My Friends. If you have questions about these pitfalls or other traps, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any questions you may have to safeguard your reputation in Court.
While the rumor that adultery somehow affects a divorce in California is the first and most popular myth regarding dissolution, the idea that common-law marriage exists in the state is a close second. In the event you have no idea what common-law marriage is, “common-law marriage” is the theory that if one co-habitates (lives) with another party long enough in a romantic relationship, they become legally married. While on paper, there may appear to be advantages to this, the advantages are confined to that – paper and dreams.
In fact, there is no common-law marriage in California, something that was made clear by the decision rendered in Maglica v. Maglica(1998) 66 CA4th 442, 447. In this case, the Court found that simply living together as alleged “husband” and “wife” cannot give rise to a “marriage” or other legal-like union under California law. While this may sound like a decision that clarifies a question that no one asked, in practical terms on a day-to-day basis, this means that people who live together, but are not married, and are not registered domestic partners have no interest in the other party’s personal property (bank accounts, cars, retirement accounts) or real property (houses) no matter how long they have been together.
This means that if you are in a long-term relationship with another person, and do not get married, under California law, you can expect to receive nothing. In the event this sounds horrible, like many things, the law provides an out. In this case, the out is what is known as a “Marvin action”based on the seminal case in this area – Marvin v. Marvin(1976) 134 CR 815. The decision in Marvin held that parties who were not married – but co-habitated for years in a common law marriage type of situation could enforce implied or express contracts that had been articulated between the parties over the years. The Court in Marvin also found that the judicial system could look to a variety of other remedies to protect the parties lawful expectations in the absence of marriage.
It is also worth noting for those that have been in a long term relationship without marriage, but have children, child support arises on termination of the relationship. See Family Code Section 3900. Finally, it is also worth noting for those that are in a long term non-marriage relationship that has ended, and are considering their rights, Marvinclaims must be brought in a short period of time. If you have questions about your rights as an unmarried party exiting a long term relationship, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any questions you may have to safeguard your financial well-being.
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.