How to Approach Divorce in Relationships with Domestic Violence
Bringing up the subject of divorce rarely provokes a positive reaction in the other spouse, but mentioning divorce to a spouse with a history of domestic violence can prove deadly for the victim. Escaping a marriage with domestic violence presents unique challenges that must be addressed to ensure the victimized spouse can safely leave. Often, the only safe route is to secretly leave the marital home, and serve divorce papers once settled in a new location. Using an attorney to handle the divorce can help the abused spouse get the legal protection they need to keep the abuser away, and also ensure the divorce is conducted to minimize or eliminate contact between the parties. A Palm Beach area woman recently suffered life-threatening injuries after her husband stabbed her in the chest during an argument about divorce. This tragic story emphasizes the need for advanced planning if the likelihood of violence exists. A discussion of the legal mechanisms in place to assist victims of domestic violence, and how domestic violence impacts issues in a divorce, will follow below.
One of the first steps an abused spouse should take once he/she is out of the shared home if retaliation is feared is to file a petition for an injunction for protection against domestic violence. Anyone who is the victim of domestic violence or in imminent danger of becoming a victim has the right to request a temporary injunction to stop future violent acts in the short-term. An injunction is a court order that directs a specified person to refrain from performing certain acts and/or to follow certain directions. In the context of domestic violence, this usually results in the abuser being ordered to:
- stay away from the victim;
- vacate and stay away from the marital home;
- follow a temporary parenting plan if minor children are shared; and
- pay child support or spousal support to the victim.
Before a judge will issue an injunction, the court must first assess whether an imminent danger of violence exists. The petitioner will need to present information related to the following to convince the court a real danger exists:
- history between the parties of stalking, threats and physical abuse;
- attempts to harm the petitioner and/or the petitioner’s family members;
- threats to harm, conceal or kidnap the petitioner’s child;
- use of weapons against the petitioner;
- criminal history of violence; and
- past incidents of preventing the petitioner from leaving and/or calling police.
Temporary injunctions only remain in effect for 15 days, or until a hearing can be held, whichever is sooner, where the spouse accused of abuse has a right to appear and refute the petitioner’s claims. Permanent injunctions can last up to two years, can be renewed, and are issued as part of the final judgment following the hearing if the petitioner’s claims are adequately supported. Having an experienced divorce attorney to present one’s case at the hearing makes it much more likely the judge will make the injunction permanent.
Domestic Violence and the Divorce Process
In the divorce process, domestic violence is a particularly sensitive issue in the area of child custody (time-sharing/parental responsibility). Courts are loathe to expose children to acts of violence, and the law specifically states that past convictions for domestic violence automatically create a presumption against shared custody, the favored custody arrangement in Florida divorces. A history of domestic violence is considered detrimental to the child, and allows the court to award sole custody to the other parent, and limit/eliminate parenting time as needed to protect the other parent and the child. In addition, any court-ordered mediation, a common stipulation in family-law cases, would not be appropriate for relationships with domestic violence, and using an experienced attorney will ensure the court knows this vital information, so mediation can be waived.
Contact Donna Hung and Paula Morrell, Orlando Domestic Violence Lawyers
Domestic violence is a serious issue that needs to be factored into a divorce. Alternatively, an allegation of domestic violence is often used to gain a strategic advantage in the divorce process. A knowledgeable divorce attorney will know when and how to use this information to protect your interests and the safety of your family as well as defend against baseless claims. The Donna Hung Law Group, helping clients in Orlando, knows how overwhelming this situation can be, and is here to advocate for you. Contact the firm at (407) 999-0099 to schedule a confidential consultation.