Divorce, Separation, and Custody: How Domestic Violence Affects Your Case

Domestic violence is an ongoing public health issue that greatly impacts families and communities every day. It’s estimated that 1 in 4 women and 1 in 7 men will experience domestic violence in their lifetime; however, for trans or gender non-conforming people, this number jumps to a staggering 54%. While these numbers are sobering, they’re only a snapshot of the problem. All of the statistics in this article rely on reports of violence. However, because of the numerous barriers survivors face when reporting harm, the actual rate of domestic violence is likely much higher.

Early studies suggest that the financial and emotional strain of the COVID-19 pandemic has exacerbated intimate partner abuse and created yet another barrier to safety. Racial and cultural biases play a major role in how the legal system treats survivors. Despite the over 40% of Black men and women who experience intimate partner violence, Black survivors are disproportionately more likely to be criminalized by the legal system. 

Divorce Proceedings Can Escalate Family Violence

Leaving an abuser is the most dangerous time in an abusive relationship. On average, it takes seven (7) attempts for a survivor to leave their abuser and stay separated. Housing and safe shelter are one of the first concerns survivors have when trying to leave their abusers. If you’re considering leaving an abusive partner, the first priority is safety for you and your children. Making a safety plan with a trusted friend, ally, or co-worker to escape is essential to maintain your safety. A study by the University of Arizona tracked over 1,000 couples during their divorce proceedings and found that if domestic violence occurred prior to divorce, it tended to continue after divorce and that violence typically accelerated within the first three to 12 months after separation. However, It's not just physical violence that can escalate, the same study showed that psychological abuse and coercive control were heavily reported during mediation, so it’s important to recognize the signs of abuse, document them, and get to safety. 

Support for Indigenous Survivors

Concurrent with historical efforts to oppress and colonize Indigenous people, Native Americans and Alaskan people are the most likely group to be survivors of intimate partner violence. Native women experience assault and domestic violence at much higher rates than women of any other ethnicity. It’s estimated that over 84% of the entire Native population has been impacted by domestic violence and dating violence. The StrongHearts Native Helpline was created by and for Native people to provide effective support for survivors who are three times as likely to experience rape or sexual assault and five times more likely to be victims of homicide in their lifetimes compared to all other races in the United States. Help is available to you via chat, text, or phone. Call the StrongHearts line at 800.799.7233 or text START to 88788. 

National Domestic Violence Hotline

If you need someone to talk to or require immediate help, call the National Domestic Violence Hotline (NDDVH) or visit them online. You can speak, chat, or text with an advocate who can put you in contact with local providers and resources to assist you with separating from your abusive partner. However, if you’re worried about your internet usage being monitored by your partner, you can also call their secure line at: 800.799.SAFE (7233). Please be cautious while accessing these services and maintain your safety at all costs. 

Abused Deaf Women’s Advocacy Services

For people affected by domestic violence who are Deaf or hard of hearing, advocates are available via telephone, email, or instant messenger through a partnership with NDDVH. Advocates who are Deaf themselves are available to answer your call. Call the hotline at 855.812.1001 or IM them at DeafHotline.  

Suicide Prevention Lifeline

National Suicide Prevention Lifeline:

24hr Hotline: 1-800-273-TALK (8255)

24hr Crisis Line: text TALK to 741-741

Safety Considerations When Leaving an Abusive Spouse

When leaving an abusive spouse, preparing a safety plan can be vital to your survival. But since many survivors share a residence with their abuser or don’t have access to private technology, it can be challenging to make a plan and execute it safely. Being proactive can save you time and money in the long run and help keep your family protected from harm. Be advised that an abuser is at their most dangerous when they believe they’ve lost control of their possession (you), so taking safety precautions is essential. Getting a spare phone, opening a private bank account, and ensuring a safe place for your animals to go are all ways to begin the next chapter of your life. 

Safe Browsing

It’s imperative when you begin researching your options and coordinating a plan to ensure your browsing and call records are private. If an abuser knows about an attempt to leave, then the likelihood of violence increases immensely. If you need to conceal your online activity for any reason, you can go here for tips on safe web browsing. 

New Phone

If your abuser is controlling your social life and phone, getting a new phone should be a priority. A spare phone can be used to safely browse or contact anyone by keeping your number private. Cheap phones can be purchased for under $50. You’ll also need a spare sim card to make it work. Set it up, charge it, and hide it somewhere your abuser won’t find it. If you’re on a shared phone plan, try to become the account owner if you aren’t already. Many phone providers make it difficult to split off of a phone plan and can prolong the contact you have with your abuser. 

Safe Housing

Safe shelter is one of the biggest problems survivors encounter when they leave an abusive relationship. Many survivors have previously shared housing costs, and then when children are involved, the question of where they will live becomes a huge hurdle. Many survivors are forced to stay in unsafe situations while they figure out a new residence. Speak to a trusted friend or co-worker who may be able to temporarily house you while you work on permanent housing. Local churches and nonprofits are good resources to connect with to find accommodations. Many will fast-track you if you have children. Be careful not to post anything on social media or have a trusted friend post on your behalf, so the abuser can’t track this. Be especially cautious about who you disclose about leaving the relationship, as it’s common for friends and family to go to your abuser and ruin your plan. As a last resort, you can find a local shelter, but be aware that many have long waiting lists, so contact them in advance.

Codeword with your Kids

If children are involved, establishing a game plan with them is just as important as any adult. Speak Your Truth Today recommends that parents create a safety plan and special code word with their children, teach them how to call 911 and who to contact in an emergency situation. You may need to consider changing schools if your abuser may show up and intervene. Studies have shown that children who grow up in domestic violence homes are more likely to continue the cycle of abuse, so getting out of the abusive situation is paramount to the future health of your family. 

Spousal Abuse and No-Fault Versus Fault-Based Divorces

Spousal abuse is a specific type of domestic violence that occurs within a marriage. Divorcing an abusive spouse raises unique concerns and considerations in the divorce process. 

Generally, there are two types of divorce: fault-based and no-fault. Some states allow couples to file a fault-based divorce, while in other states, divorces are legally classified as no-fault by default. If you live in a state that offers the choice and you’ve experienced spousal abuse, carefully evaluating which type of divorce to file is crucial. Your decision will determine how much personal information you’re required to disclose to the court, so it’s critical you consider your options before filing.

If you decide to pursue a fault-based divorce, you’ll need to share the details of your experience and produce evidence supporting your claims. A fault-based divorce is more likely to be contentious, and many survivors choose not to pursue it for fear of their safety. Fault-based divorce also generally takes longer to resolve and is more expensive than no-fault divorces, which you’ll want to consider before you file. Anyone filing this type of divorce should have a lawyer representing their best interests and advocating for their continued safety. 

If getting out of the marriage quickly or if the potential court battle poses financial concerns, then a no-fault divorce is likely your best choice. A no-fault divorce makes the most sense if you and your spouse can agree on all the issues in your divorce, like property division and child custody. You’ll be able to save money with a no-fault divorce, but it’s not always an option when one party is an abuser. 

How Spousal Abuse Affects Divorce Court Hearings and Proceedings

When dealing with divorcing an abusive partner, it’s essential to your safety to proceed thoughtfully and carefully. Listen to your instincts if something seems off or wrong, and ask for assistance and advice when you need it. If you’re worried about your safety or your children’s safety, contact law enforcement and begin documenting the abuse for the Court. 

Personal Protective Orders

If your spouse is abusive, you can request a protection order from the court during the divorce process. Depending on where you live, the court may issue a temporary restraining order (TRO) prohibiting your spouse from having any contact with you. In some states, these protection orders might be called a “protection from abuse” (PFA), “no contact,” or “personal protection order. Check with your local county clerk to see if you can access the documents you need online. 

A judge will read your request for a protective order, and if they believe your safety is in danger, they will issue the order and put it into effect immediately. However, if your spouse disputes the need for a protective order, then you may need to attend a hearing with the judge before they make a decision. Before the hearing, the court can make arrangements to avoid meeting with your abuser face-to-face, or you can consider an attorney who can attend on your behalf. 

Once the protective order is issued, if your spouse disobeys the order, you can call the police to arrest your spouse. Violating a protective order can be a severe offense and result in your spouse spending time in jail. Nevertheless, a protection order protects you legally but can’t protect you physically. Protection orders can be a necessary form of documentation for the court. However, they won’t shield you from real harm, especially if your abuser escalates the level of violence. Call 911 immediately and try to get somewhere your abuser won’t find you.

Financial Outcomes

Even in a no-fault divorce, spousal abuse may be an important consideration when the court is determining how to distribute assets, liabilities, and spousal support. 

In certain states, spousal abuse can impact property distribution. Upon demonstrating to the court that spousal abuse has adversely affected your finances, has resulted in financial loss, or has decreased your ability to earn income, a judge may be able to alter the distribution of your property.

Additionally, spousal support, or alimony, is a court-ordered payment that one spouse pays the other for a specific period of time. The purpose of alimony is to provide financial support during or after the divorce, but a judge rarely orders alimony as a punishment for wrongdoing during the marriage. 

While proof of fault isn’t enough to guarantee an alimony award, most courts will again consider how the abuse made survivors self-sufficient. Certain states don’t allow a spouse’s marital behavior to influence alimony determinations. Others leave it up to the judge to decide if abusive behavior should excuse the abused spouse from alimony payments. In states like California, a domestic violence conviction can disqualify the abusive spouse from receiving alimony. 

Custody

Depending on where you live, each state has specific laws that allow courts to consider domestic violence between parents when determining child custody. Most judges will take into consideration what’s in the child’s best interest when deciding custody. The court can limit an abusive parent's custody rights if there’s a documented history of domestic violence in the family. Immediately let the court know if you fear for your or your child’s safety, so they can install protective measures, like public drop-offs or supervised visits. 

Records of Abuse

If possible, having an official record of abuse can support your arguments in favor of child custody, alimony, or property division. Official records include law enforcement reports, photographs of injuries, legal recordings, a current case, or past convictions. Witness reports can also be valuable when it comes to the outcome of your divorce. 

However, many divorce courts understand that there may not be an official record of abuse for many reasons. An abusive spouse could’ve been charged with, but acquitted of spousal abuse, often because the survivor drops charges in fear. The abuser could have accusations, but no charges or accusations come to life during the divorce proceeding. If any of these scenarios accurately reflect your situation, consider seeking legal help. If your spouse is the subject of an ongoing investigation, an attorney can help you navigate the divorce while helping maintain distance from your abuser. As a reminder, if you feel like you and your loved ones are in danger, get to safety and call 911. 

Tell People You’ve Been Abused

Often, people who’ve been abused feel shame about their abuse and may blame themselves for the abuse. Many survivors feel confused, afraid, or even numb and can isolate themselves from loved ones in order to avoid disclosing the abuse. Telling trusted friends and family about your abuse is an entirely personal decision and for many, a daunting one. Before disclosing, develop a plan about how you’d like to do it. RAINN’s hotline staff or a trusted therapist can help you create a plan. 

Deciding to share your story is the survivor’s decision, along with which details they’re comfortable sharing. If you’re going through the divorce process, you may choose to disclose the abuse to the court to determine child custody, spousal support, or property division. If it’s a fault-based divorce, you will need to provide documentation of the abuse to receive a protection order. The more proof you have of ongoing abuse, the more likely the judge will vote in your (survivor’s) favor. It can also be incredibly healing to speak with someone supportive about the abuse, and these witnesses can be called later to reify the accusations. 

Resources for Folks Leaving Abusive Spouses

Leaving an abusive spouse is never easy, but there are many resources for those survivors struggling to get out of an abusive situation. Local libraries and shelters have resources for those experiencing intimate partner violence and can put you in touch with other organizations who can support you during this dangerous time. Contact a divorce attorney knowledgeable about domestic violence if it's a contentious separation.. They can act as a legal shield from your ex in the courtroom and make sure all legal protections are in place to avoid further harm. However, it’s important to enact safety measures outside the courtroom, as many abusers continue the abuse even after separation. If you feel like you’re in danger, contact law enforcement by calling 911. 

Interactive Safety Plans

If you need guidance on creating a plan of action to escape an abusive situation, an interactive safety plan guide is provided here. Once again, you can exit the page at any time with their safe exit but take care accessing this information. 

Address Confidentiality Program

To protect your address from becoming available online and therefore available to your abuser, you can sign up for the Address Confidentiality Programs (ACP). The ACP was created to protect victims of stalking, domestic violence, sexual assault, human trafficking, and other crimes from individuals who intend to cause them harm. ACP programs typically protect a participant’s real address by providing a mail forwarding service and giving participants a legal substitute address to use in place of their physical address. This address can be used whenever an address is required by public agencies (such as driver’s license registries, schools, courts, police departments, etc.) to locate them. First-class mail sent to the substitute address is forwarded to the victim’s actual address.

Many programs require participants to sign up through an application assistant, like an advocate, who can help participants develop a more extensive safety plan to protect their physical location from their abuser. 

Red Rover

Domestic violence doesn’t just impact people but our furry friends as well. Many victims have to leave behind their pets when feeling an abusive relationship because they’re unaware of the resources. RedRover is a National Nonprofit that provides financial assistance, resources, and support to low-income survivors of domestic violence and their pets. RedRover’s mission is to “preserve the human-animal bond” so families can escape and stay together. If you have animals in your home and need disaster relief or emergency shelter, contact RedRover to find out how they can help. 

About the Author

Scott Levin is a family law attorney mediator in San Diego California known as the Chief PeaceKeeper™. As the leading divorce mediation lawyer in California, Scott leverages an eclectic background in law, business and finance to aid families through his expertise in family and divorce mediation. Passionate and dedicated to aiding clients resolve conflict outside of court, Scott Levin helps clients amicably divorce in California by working to bring about settlement terms, drafting the marital settlement agreements and filing the court forms. Scott also helps with post-judgment modifications as well as prenuptial and postnuptial marital agreements.