Domestic Violence & Its Legal Impact on Divorce
Domestic violence, whether physical abuse or another form of harm, may lead to or stem from divorce proceedings. Divorcing individuals experiencing domestic violence will benefit from the help of a lawyer, especially one experienced in divorces involving domestic violence. If hiring a lawyer seems out of reach, the local bar association can likely provide free resources or referrals to low-cost legal services. Some domestic violence shelters also offer legal guidance.
Types of Abuse
Domestic violence (or abuse) is commonly associated with physical abuse, such as hitting or kicking a spouse. However, the term domestic violence may describe any action or pattern that affects a spouse’s health and safety. A spouse may be emotionally abusive by using threats or criticism to undermine an individual’s mental health. A spouse may also perpetrate domestic violence by isolating an individual from others or preventing them from accessing money for the necessities of life, like food and shelter. Stalking is a form of domestic abuse, and offenders may be prosecuted under a state’s anti-stalking laws as well as subject to restraining orders. Sexual abuse may arise in cases of forced sexual contact or control over reproductive strategies. Some states consider even isolated instances of violence domestic abuse, but many look to the “cycle of violence” to determine whether an individual is experiencing domestic violence.
Documenting any type of abuse is important, whether that abuse occurs before or after an individual files for divorce. If it is safe to do so, an individual experiencing domestic violence should prioritize moving to a location where their spouse cannot find them. The individual may then seek further protection from a domestic violence or family court.
Emergency Orders and Restraining Orders
Restraining orders, also known as protective orders or injunctions, are civil orders designed to protect individuals experiencing domestic violence from their abuser. An individual may usually receive a temporary restraining order (TRO) from a domestic violence court in an abbreviated period of time and without a full court hearing or confronting their alleged abuser in court, but long-term restraining orders almost always require a full hearing with both parties.
If the domestic violence issue is not an imminent threat, and a divorce case is pending in family court, an individual may file an emergency motion for protection in family court. An emergency protection motion can also be helpful in instances in which there has been no past domestic violence, but an individual fears that their spouse may retaliate during the divorce. However, a family court judge will likely ask for evidence in the form of a sworn statement or a full evidentiary hearing before granting such an order.
Judges have discretion in how exactly a restraining order or emergency order will protect an individual experiencing domestic violence. The order may impose such restrictions as refraining from physical or non-physical contact, keeping a certain distance from the person experiencing domestic violence or their workplace, school, or home, or ceasing to commit or threaten to commit domestic violence. If the parties live together, the order may evict the alleged abuser. In some instances, the order may prevent the alleged abuser from possessing or purchasing firearms. The order may also protect minor children in danger of experiencing domestic violence.
Effect of Domestic Violence on Divorce
If any order related to domestic violence is granted, or other evidence of domestic violence arises, divorce considerations such as child custody and spousal support (alimony) may be affected. However, courts vary in how heavily judges may weigh evidence of domestic violence in divorce decisions.
A parent’s child custody rights may be reduced by a finding that domestic violence occurred, even if the domestic violence was not perpetrated on or near the child. However, most courts will not deny a parent visitation outright unless the domestic violence was directed specifically at the child. A parent concerned for their safety may ask the court to account for those concerns by including protections in the visitation plan, such as a public meeting place or supervised visitation.
Domestic violence may also affect alimony. Some judges may consider how domestic violence has affected the abused spouse’s ability to support themselves. In cases in which the abused spouse would otherwise be ordered to pay spousal support to their abuser, some states allow a judge to excuse the abused spouse from paying alimony. Other states completely prevent anyone convicted for domestic violence from receiving alimony. However, not all states allow a judge to consider domestic abuse when determining alimony.
Emergency Expedited Divorce
Some states allow for emergency expedited divorces in cases of domestic violence. An individual seeking an emergency expedited divorce should investigate the procedural requirements in their state, such as whether they may ask for the expedition in the initial divorce petition or must file a separate motion. Jurisdictions may also require certain evidence to justify the emergency. An expedited divorce may allow individuals experiencing domestic violence to completely remove themselves from their abuser much more quickly than most other divorce options.
