domestic violence divorce essay

Divorcing an Abusive Spouse: What to Do When Domestic Violence is Part of the Equation

Nicole Smith

What to Do When Domestic Violence is Part of the Equation Divorcing an Abusive Spouse

Some people get along just fine in their marriages.

Never a hint of disagreement. Rarely a voice raised in discontent.

But let’s face it…that’s rarely the case. Every marriage experiences ups and downs, and when people aren’t adequately equipped to handle life’s challenges the right way, frustration, disappointment, and anger can set the stage for a poor response that can contribute heavily to justifying the need and desire for a divorce.

Defining domestic violence

Falling out of love is a downward spiral that can trigger intense negative feelings. When those negative feelings manifest themselves in various ways, the stage is set for domestic violence to take place.

Domestic violence is more than just one spouse raising a hand striking the other. The ugliness of domestic violence wears many faces.

It is a pattern of physical, psychological and abusive behavior that can affect any family member regardless of their age, gender, sexual preference, ethnicity or social standing.

Domestic violence can include any kind of harassment made through phone calls, stalking, social media, email, snail mail or any other form of contact. Depending on the severity of the abuse, when law enforcement gets involved, it can be charged as a misdemeanor or a felony.

Physical domestic abuse is defined as any of the following:

Scratching, biting, grabbing or spitting.
Shoving, punching and pushing.
Throwing objects to hurt or intimidate you.
Destroying possessions or treasured objects.
Hurting or threatening to hurt your children and/or pets.
Disrupting your sleeping patterns to make you feel exhausted.
Burning or choking.
Attacking or threatening to attack with a weapon.
Any threats or actual attempts to kill you.
Sexual abuse, which can happen in marriages and committed relationships

Emotional or psychological abuse is behavior used to control you or damage your emotional well-being. It can be verbal or non-verbal and can manifest as:

Name-calling, mocking, intimidation and making humiliating remarks or gestures.
Yelling in your face or standing is a menacing way.
Manipulating your children.
Telling you what to do or where you can and cannot go.
Placing little value on what you say or putting you down in front of others.
Interrupting, changing topics, not listening or responding, and twisting your words.
Saying negative things about your friends and family.
Preventing or making it difficult for you to see friends or relatives
Cheating or being overly jealous.
Shifting responsibility for abusive behavior by blaming others or saying you caused it.
Monitoring phone calls, texts, car, and computer use.

Economic or financial abuse takes place when an abuser makes a victim completely financially dependent on the abuser. It can include:

Forbidding the victim to work or attend school.
Sabotaging employment opportunities
Jeopardizing employment by stalking or harassing the victim at the workplace.
Denying access to a vehicle or damaging the vehicle so that the victim cannot get to work.
Sabotaging educational opportunities.
Withholding money or giving an allowance.
Denying access to bank accounts.
Hiding family assets.
Running up debt in the victim’s name.

Stalking and harassment can happen between strangers or in relationships after one party makes it clear they do not want to have contact with the other one. It can include:

Making unwanted visits
Sending unwanted messages (voicemails, text messages, emails, etc.).
Following you, including through the use of GPS tracking software
Checking up on you constantly.
Embarrassing you in public.
Refusing to leave when asked.

When domestic violence takes place, a victim can experience physical trauma, unregulated aggression, chronic health problems, mental illness, psychological disorders such as PTSD,

Divorce can wait…your safety cannot

In a situation where one spouse is contemplating a divorce, those actions are secondary to the immediate safety of a spouse, children or any family member or acquaintance who is at risk from an abuser.

Many spouses often feel trapped when domestic violence is present in a relationship. They are afraid that just the mere mention of leaving or getting a divorce will trigger such a violent outburst and retribution that they will be placed in immediate danger. It’s not uncommon for a spouse to suffer in silence and fear for a long time, and sometimes until it is too late.

The bottom line is this.

When domestic violence is present and you or a loved one’s health and safety is in clear or imminent danger…GET OUT immediately.

If you need help, call 911.

When in doubt, call 911.

If you can, leave now!

Any thoughts you have about getting a divorce can wait. Protecting yourself at all costs is the only thing that you should be focusing on.

Law enforcement across the nation takes matters of domestic violence with the utmost degree of concern. There are protections and processes in place to protect you from domestic violence, but you must not be paralyzed by fear or denial.

One step you can take is to seek a civil order of protection (sometimes referred to as a temporary restraining order) that will legally require your abuser to stay away from you. This will include all forms of physical contact, calls, stalking and any other form reaching out to you. Violating this order will result in the abuser’s arrest. This will give you to time to sort out your options, including beginning divorce proceedings. With the help of police and social services agencies, you will also have time to find shelter without a spouse knowing your whereabouts.

You must file a restraining order petition in your county court. Many counties offer detailed online information, plus free downloadable forms, so you may want to begin your search for information at the county court’s website. You can also visit the court clerk’s office in person to get the forms and ask questions about the process. Some courts have self-help centers with staff trained to help you prepare and file your forms.

You might be worried that the court will fault you for not protecting your children from witnessing violence in your home. But generally, courts understand that women who are the victims of domestic abuse often develop what is sometimes called battered woman’s syndrome, a condition much like PTSD that makes it hard to take action.

A temporary order can later be changed to a permanent order that can be put in place for a much longer period of time with equal restrictions.

Keep in mind that these orders can be put in place to any criminal charges that are filed as a result of suspected physical abuse.

How domestic violence can affect a divorce

In some states where fault-based divorce is allowed, domestic violence may be the stated reason you can file for divorce. many states have no-fault divorce meaning that all a spouse must do is cite irreconcilable differences as the reason for a divorce.

Depending on the state, if domestic violence or marital cruelty can be cited, it could have an impact on the division of assets or give the victim an upper hand in settlement discussions. It really depends on the laws in your state.

For instance, in California, domestic violence is one of the factors the Court considers when setting permanent spousal support. Here is an excerpt from Family Code section 4320 :

(i) 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.

One area where domestic violence in a marriage can have a major impact is child custody.

How domestic violence can affect child custody

Although laws and regulations regarding child custody will vary to some degree from state to state, one commonality is that all states take the best interests of a child into consideration when making determinations about child custody in a divorce.

Normally, most states prefer that both parents have an active and ongoing role in raising a child after a divorce, and while one parent may wind up as the primary custodial parent, the other will oftentimes be granted significant visitation rights .

However, when domestic violence is present in a marriage and it can be documented, courts can place severe restrictions on child custody and visitation privileges. Depending on the severity of the abuse, a parent’s privileges may be denied completely. In other cases, visitation could be limited to small windows of time under the supervision of a court-appointed guardian.

After a period of time, it may be possible for an abuser to petition the court for more visitation rights if it can be shown there has been a change by the abuser. This may be completing court ordered counseling or some other form of behavior modification.

What to do if you’re falsely accused of domestic violence

Being falsely accused of domestic violence is serious and it can easily happen in a very contentious divorce situation. Not only could you lose your child custody or visitation rights, but you could also face criminal charges, lose your job, lose where you are living, and your reputation could be negatively impacted for years to come.

Sometimes, in an effort to gain the upper hand in a custody battle, a spouse will make this type of false accusation.

If a false accusation takes place, immediately get legal representation. Also, if a restraining order is in place, do not violate it under any circumstances. You will only add credence to the case being made against you. You can also help your case by remaining calm in court proceedings. You could be baited into an outburst which also plays into the charge against you.

Consider that if the charge of domestic violence can be proven false, your spouse could actually be the one in trouble and could face charges of perjury. This doesn’t happen often though since law enforcement officials are wary of prosecuting women for this as it may discourage other women from filing genuine cases of domestic violence.

Domestic Violence Resources

If you are in immediate danger, call 911.

National Domestic Violence Hotline

800-799-SAFE (7233)
Provides advice and assistance.

National Coalition Against Domestic Violence

303-839-1852
Has a list of state coalitions that can help you find local services.

National Center on Domestic Violence, Trauma and Mental Health

Several resources listings you can access depending on your individual need.

National Center for Victims of Crime

1-855-4-VICTIM (1-855-484-2846)

Looking for more divorce tips? Check out a few of our favorite resources:

101 Financial Pitfalls of Divorce
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The Ultimate Guide to Divorcing a Narcissist
The Psychological Effects of Divorce on Children

After a hellish marriage and even worse divorce from a narcissist, I’ve seen it all and live to tell the tale. I share honest, raw, non-judgmental advice and support to help you get through your divorce unscathed.

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How Domestic Violence Affects a Divorce Case

By Marc Martin Updated: October 23, 2021 Categories: Domestic Violence

As per the latest statistics by the National Domestic Violence Hotline, more than 12 million women and men suffer from some kind of domestic violence in a year. This means that on average, 24 people per minute are victims of physical violence or stalking by an intimate partner. Further, the reports also state that there is a direct link between child abuse and domestic violence. 40% of victims of child abuse report domestic violence in their home. The majority of the victims of domestic violence are women.

What Is Domestic Violence?

Although the definition of domestic violence varies from state to state, it can commonly be understood to include any acts of actual or threatened abuse including physical, sexual, emotional, or financial abuse, and threatening or intimidating behavior towards a spouse. A few states also refer to domestic violence as “cruel treatment.” The following are examples of the common types of domestic abuse that happen between married couples:

Physical Abuse: This includes violent actions such as beating or causing physical pain in any manner.
Emotional Abuse: Putting the other person down, playing mind games, using manipulation to make the other person feel that they are insane/crazy, humiliation, making them feel unworthy or doubt their self-esteem.
Control & Power Play : Controlling who the other person talks to, who they meet, where they go, limiting outside interaction.
Tactics Through Children : Relaying messages through children, threatening to take the children away, feeding the child’s mind with false negative information about the victim, blaming for a child’s wrongful behavior.
Economic/Financial Abuse: Making the other person beg for money, taking away their money using emotional tactics, preventing them from keeping or getting a job, and/or coercing or forcing them to take money from their parents.
Using Gender Roles: Treating a woman like a domestic worker, not involving a woman in important decisions, women taunting and harassing a man for not earning enough.
Property Damage: Causing damage to the spouse’s property
Sexual Abuse: Sex against one’s wish or using sex as a means to fulfill one’s commands and demands.

Can Domestic Violence Be Grounds for Divorce?

Usually, a divorce proceeding can be categorized into two categories:

At-Fault Divorce: Some states require that the spouse who wants to get a divorce must show some reason(s) or grounds for divorce. In such states, usually, “domestic violence” is a valid ground to seek divorce.
No-Fault Divorce: A few states allow for a no-fault divorce. This means that the party seeking a divorce does not need to show any type of bad behavior on part of the other party to f ile for a divorce . In these states, a mere claim that there are “irreconcilable differences” to the extent that the marriage cannot be saved is enough to file for a divorce. However, the existence of “domestic violence” allegations does impact the rights of the parties during the divorce proceedings.

To determine if your case is a fault or no-fault divorce, speak with an experienced local divorce lawyer.

What Impact Does Domestic Violence Have on Divorce Proceedings?

The impact of domestic violence can be fairly negative on the physical and emotional well-being of any person. Therefore, courts take charges of domestic violence very seriously.

Stay-away orders: This implies no contact with the victim in any manner or restrained from being within a certain distance from the victim at home, at work, or at any other place the victim is known to visit often. These are also called ‘stay away’ orders.
No contact/Limited contact with children: The court may also direct the abuser to not contact or have limited/supervised contact with the children. Further, the custody of children may be exclusively granted to the victim in order to keep the children safe from abuse or being a witness to such abuse.
Child Custody: The first and the most important impact of domestic violence in a divorce proceeding is on child custody. If there is a consistent behavior showing domestic violence, then that spouse is less likely to get child custody. Further, if extreme allegations of domestic violence are proven then some judges may even order a complete prohibition on visitation. In other cases, the courts may order supervised visitation, or visitation only in public places, and even prohibit overnight visitation. The decision is made based on a child’s best interests. If it is proven that being a witness to domestic violence or being close to the abuser negatively impacts the child’s growth, then the court will consider domestic violence as a prominent factor in determining the custody rights of the child.
Division of Marital Assets: Courts usually take into account a spouse’s behavior during marriage to decide the division of marital assets . A larger share of marital assets may be awarded to the victim of domestic violence. If the domestic violence was related to economic or financial abuse, then the division of the assets will be more favorable to the victims of such abuse. For example, if the domestic violence consisted of mental abuse that impacted the victim’s ability to make or earn money, or caused a job loss to the victim, then the courts will usually award a larger share to the victim.
Alimony: Usually, a victim of domestic violence gets an upper hand in many aspects of the divorce proceeding. Similarly, in determining the amount of alimony, the court will look at the relevant allegations of domestic violence. If the domestic violence includes aspects related to economic or financial abuse, such as not letting the victim work so as make them financially dependent on the abuser, then the courts may grant higher alimony. Sometimes, even if the victim’s earning capacity was not affected, the courts may decide to grant alimony to victims of domestic abuse.

What Important Factors Will a Court Consider in a Divorce Proceeding Involving Domestic Violence?

Kind & Level of Domestic Abuse: The kind and level of domestic abuse are important criteria judges look at while deciding issues like child custody or marital assets division. For example, more serious abuses such as causing chronic depression or major physical harm may have more serious repercussions. Further, the duration or the consistency of the domestic abuse is also considered by the courts. The longer the abuse, the more favorable the court is towards the victim.
Evidence to Prove Allegations: Mere allegations without any evidence will generally not help the victim. The existence of legitimate proof which shows what kind of abuse was done and how it impacted the victim either physically, mentally, emotionally, or economically will have a great impact upon the case. Therefore, it is always recommended to the victims to preserve all evidence and proof they have related to their domestic violence claim. For example, in domestic violence allegations related to the impact on the mental health of the victim, providing medical reports will benefit the victim.
Impact on Victim’s Earning Capacity: If the domestic violence negatively impacted the victim’s earning capacity, then the financial aspects of the divorce proceeding will be more favorable to the victim.
Patience & Efforts of the Victim: If the victim tried to save the marriage by either patiently waiting for such abusive behavior to end or change, or to save the reputation of the family, the court may consider this as a relevant factor.

Domestic violence may lead to different civil and criminal charges against the perpetrator, including charges for assault and battery. When these charges either form part of a divorce proceeding or are grounds for such divorce proceedings, then the rights of the parties to the proceeding are impacted. Most importantly, the abuser’s right to child custody and equal distribution of marital assets are negatively impacted in a divorce proceeding having domestic violence allegations.

Marc Martin is the Managing Editor for LiveLawyers.org, a free online legal phone consultation service based in Texas. If he’s not writing or helping out other people get good legal advice, he’s probably out hiking, biking or reading fictional books. www.livelawyers.org

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