Domestic violence affects millions of American households each year. Over the past several decades, every state has enacted laws to protect domestic abuse victims. Many laws specifically address how domestic violence or other abuse affects court decisions in divorces. This article will explain how domestic abuse can affect how you approach your divorce case.
COVID-19 Update: The coronavirus outbreak has impacted how the courts and domestic violence organizations are able to operate. To learn how their services are affected and what resources are still available to you while shelter-in-place orders are in place, see the article, What Should I Do If My Spouse Is Threatening or Harassing Me?
Filing For Divorce
A no-fault divorce—where no blame is attached to the break up—is the only option for divorcing couples in about a third of United States, and in these states, you cannot file for divorce based on your spouse’s domestic violence. In the other states, however, you’ll be able to use your spouse’s domestic abuse as the grounds for divorce. But even if you're in a no-fault divorce state, you may be able to introduce evidence of your spouse’s behavior during the case.
Domestic violence falls under various categories, depending on what state you live in. In some states, you can ask for a divorce based on "domestic violence." In others, it's referred to “cruel treatment,” which would include both mental and physical abuse.
Child Custody
Evidence of domestic violence almost always impacts child custody. Clearly, if a spouse is abusive to a child or to another person in front of the child, that spouse is less likely to gain custody of the children. In most jurisdictions, it hurts the abusive spouse’s custody chances even if the domestic violence occurs without the children’s knowledge. If your spouse has been abusive, gathering evidence of his or her behavior can help sway the court in your favor when it determines custody.
Courts utilize various measures to protect children from abusive parents. Judges can order that a professional supervise all visitation periods and prohibit overnight visitation. The judge can also help protect the abused parent by ordering that all exchanges of children take place in a public place, like a police station or fire department. If you are in fear for your or your child’s safety, you should bring this to the court’s attention, and ask for the appropriate protections.
In extreme cases, a court may terminate the abuser’s visitation altogether and award full custody to the other parent. In cases where the abusive parent has caused serious injury to a child, a judge may order a permanent termination of the abuser’s parental rights.
Division of Marital Estate
In a number of states, courts consider a spouse’s behavior during the marriage when deciding how to divide the marital estate. Judges sometimes award a larger share of the marital estate to an abused spouse, particularly if the abuser negatively impacted the couple’s finances. For example, if the abuse prevented or harmed the abused spouse’s ability to maintain employment, a court may award the abused spouse a larger share of the marital estate.
Alimony
Domestic abuse is most likely to affect alimony when an abusive spouse harms the other spouse financially. For example, some abusive individuals try to control their spouses by not allowing them to work, rendering them financially dependent. In these cases, a judge is likely to award the abused spouse alimony. In some jurisdictions, the court may consider domestic abuse when deciding alimony, even if it hasn’t affected the abused spouse’s earning capacity.
Settlement
If your spouse has been abusive, you may have the upper hand in several aspects of the divorce. An abusive spouse can often settle on advantageous terms when the abuser wants to avoid the abusive behavior coming to light in a public courtroom. A skilled attorney may be able to help you negotiate a favorable settlement without having to take your case to trial.
If you are divorcing an abusive spouse, you should contact a local family law attorney to help you with your divorce strategy.
Consider Your Safety When Leaving an Abusive Spouse
The University of Arizona investigated couples who lived in Pima County, Arizona by correlating couples going through a divorce with domestic violence call logs from the Tucson Police Department and the Pima County Sheriff’s Department. The study found, among other things, that if a couple had a history of domestic violence before divorce, the pattern of violence was more likely to accelerate within the first three to 12 months after separation. As a result, there may be a greater risk of violence after divorce, especially if you and your ex disagreed about child custody during the divorce proceedings.
So what can you do to try protect yourself and your children?
- Understand what a safety plan is by reading the National Domestic Violence Hotline's brochure on creating a safety plan.
- Develop your own personal safety plan after you read this brochure.
- Prepare a safety packing list for you and your children. At a minimum, include copies of your most important documents (birth certificates, driver’s licenses, court records, money (including credit cards, ATM cards, checkbooks); car, house, and safety deposit keys; a cell phone and address book; and medications. For a complete list, look at this checklist from the U.S. Department of Health and Human Services);
- Practice leaving your home safely.
- Store a bag of clothing and the items on your safety packing list at the home of a trusted friend or relative.
- Develop a code word you can use that will alert your children, family, and friends when you’re in danger.
- Depending on the parameters of your custody order (if you have children), conceal your address and phone number from your ex. If your ex has visitation, make sure to meet for pickups and drop-offs at a safe location, preferably a police station. If your children are at risk, ask a judge to arrange for supervised visitation or, better yet, to suspend it altogether.
- If you can trust your neighbors and your landlord, ask them to call the police if they see your ex skulking around your residence or otherwise “hanging around” and stalking you.
- Memorize important phone numbers in case you can’t get to an address book or a cell phone.
- If you’re employed, make sure your co-workers and any security staff know about your situation and escort you between your office and your car.
- Don’t use the same route to get to and from work.
- If you know your ex is going to show up uninvited at some point, make an advance plan to go somewhere safe. If all else fails, go to a shelter or a safe space, like a police or fire station. Call the police once you’ve reached safety. If you're in immediate danger, call the police for help.
- Consider getting an order of protection. For this, you would need to go back to court if your ex disputes it, but it is a legal document that would require your ex to stay away from you for a period of time. You can show the police if things go badly. Always keep it with you and make sure your friends and family know about it.
- If you’re concerned that your ex might take your kids and disappear outside the United States, give serious consideration to asking a judge to order that your children’s passports be held by the court and only released upon a judge’s order.
Resources
In addition to the above suggestions, the federal government maintains a women’s health website dedicated to helping women who are victims of domestic violence. The site features a red “escape” button you can click if an abuser is nearby.
When looking for help as a victim of abuse, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.
