Family Law

How a Spouse's Domestic Violence May Affect Divorce Strategy

By Aaron Thomas, Attorney

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.

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 the United States, and in these states, you cannot file for divorce based on your spouse’s domestic violence. In most 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’ll still 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 employability.

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.

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