Written by: Debra Whitson, Executive Contributor
Executive Contributors at Brainz Magazine are handpicked and invited to contribute because of their knowledge and valuable insight within their area of expertise.
October is Domestic Violence Awareness Month, and many people who have experienced domestic violence firsthand, might fear that suggesting a divorce or starting divorce proceedings may anger their abuser.
According to Liz Merill, in her article Love Is Not Abusive ‒ A Social Media Campaign For Young People: “Intimate partner violence alone affects more than 12 million people every year. 96% of dating adults report experiencing emotional and verbal abuse. 48% of people experience psychological aggression from an intimate partner.”
With statistics like these, it’s understandable that many divorcing clients of my law firm, WhitsonLaw, PLLC. fear how their partner might react upon receiving the news that they would like to separate. However, being fully prepared and understanding exactly how domestic violence will influence your divorce proceedings will guide and equip you with the knowledge you need to successfully navigate the process.
What Does the Court Consider as Domestic Violence?
Although the definition of domestic violence differs from state to state, it could be categorized as any threatening or abusive behaviour, including financial, physical, sexual, or emotional abuse.
Examples Of Abuse That May Occur Between Married Couples Include:
Financial Abuse: Manipulating their spouse to take out loans, mortgages, borrow money from friends/ parents, preventing them from keeping/finding jobs, or simply keeping their spouse’s money for themselves.
Physical Abuse: Causing any physical harm to their partner by any violent action such as hitting, kicking, screaming, shoving, biting, or strangling their spouse.
Sexual Abuse: Using sex as a tool to manipulate their spouse, or coercing/ manipulating their partner into engaging in sexual acts they do not wish to participate in.
Emotional Abuse: Manipulating their spouse, belittling them, using tactics such as gaslighting to make them feel inadequate, spreading lies about their partner, or simply breaking down their self-confidence.
Other examples of abuse that may also frequently occur include involving their children through using tactics, property damage, controlling behaviour or using gender roles to manipulate their spouse.
Can Domestic Violence be categorized as grounds for Divorce?
In 2010, New York became the last state to allow no-fault divorce. This means that parties no longer need to prove that the marriage is coming to an end because of intolerable behaviour by their spouse. However, should you consider filing for a fault-based divorce, the grounds for divorce would be as follows:
Cruel and inhuman treatment where it is unsafe for the parties to live together • Abandonment for a continuous period of one year or more
Imprisonment for three or more years after the parties were married
Adultery
Living apart for one or more years after obtaining a judgment of separation
Living apart for one or more years pursuant to a separation agreement
What Important Factors Will the Court Consider During Divorce Proceedings?
Types of Domestic Abuse: Judges often consider the kind and level of domestic abuse, as important criteria when deciding upon child custody or division of marital assets. The longer the abuse continues, the more favourable the court usually is towards the victim.
Evidence: If the victim has legitimate proof of the incidents which occurred, it might have a great impact upon the case. It is always recommended that victims of domestic violence document the abuse, and to preserve all evidence.
Efforts: Should the victim be able to prove that they tried to save the marriage by suggesting counselling, or encouraging the abuser to seek help, the court may consider this a relevant factor.
Impact on victim’s Finances: If domestic violence hindered the victim’s ability to earn an income in any way, the court might also be more favourable to the victim in terms of the financial aspects of divorce proceedings.
How Will Domestic Violence Affect Divorce Proceedings?
Protective Order: Victims of domestic violence can file for a “Domestic Violence Restraining Order.” The victim may ask for a temporary or permanent Protective Order. These orders usually include two types of orders from the court:
Stay-away orders: This means that the abuser is not allowed any 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 frequents. These are also called ‘stay away’ orders.
No contact/Limited contact with children: The court may decide that the abuser is not to contact or have limited/supervised contact with the children. Sole custody of the children may also be granted to the victim to keep the children safe from abuse or being a witness to such abuse.
As reiterated by Justia, in their article Domestic Violence and Divorce, violating an order related to domestic violence may lead to serious consequences such as:
A reduced or eliminated right to spousal support
An increased spousal or child support obligation
Reduced parenting time
Fines
Jail time
Domestic Violence Further Affects:
Child Custody: If there was recurring behaviour showing domestic violence, then that spouse is less likely to get child custody. Some judges may even order a complete prohibition on visitation in extreme cases. If it is proven that witnessing domestic violence or being near the abuser negatively impacts the child, 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 consider a spouse’s behaviour during marriage to decide the division of marital assets. Victims of domestic violence may be awarded a larger share of the marital assets.
Alimony/ Spousal Support: When determining the amount of spousal support, the court will look at allegations of domestic violence. If the domestic violence includes aspects related to financial abuse, such as the victim being forced to be financially dependent on the abuser, then the courts may grant more spousal support to the victim.
What Should Domestic Violence Victims Consider When Filing for Divorce?
As a former prosecutor specializing in domestic and child abuse cases, I always prioritize safety. While divorce calls for planning and preparedness, this might not be possible for all, especially if you are in imminent danger. In homes where domestic abuse is present, springing or even suggesting the idea of separation or divorce to a physically abusive spouse may spur violence and make leaving hard, if not impossible entirely. If you can be taking your time in planning your exit, do so carefully and efficiently.
Otherwise, find shelter in a safe place and contact a domestic violence program to help secure your safety and to know your options moving forward.
Should you find yourself in a position where you are experiencing domestic violence, and wish to start divorce proceedings, schedule a call with one of our Certified Divorce SpecialistsTM at WhitsonLaw,PLLC. so that we may assist you during this transition and difficult period of your life.
Debra Whitson, Executive Contributor Brainz Magazine
For the first half of her career, Debra Whitson was a prosecutor, and she spent the latter half specializing in Matrimonial and Family Law. She is an experienced mediator and collaborative divorce practitioner as well as a recognized expert in working with victims of domestic violence. Debra believes that legal battles are more harmful to families than helpful, and is passionate about helping people find ways to make their own decisions for their families, rather than leaving their outcomes in the hands of a stranger in a black robe. When court is unavoidable, Debra aims to educate and support people to make the legal process less costly, scary, uncertain, and stressful.
