Domestic Abuse and Divorce

Posted on Jul 18, 2022 by Katie Carter

Domestic violence is everywhere. It’s a lot more prevalent than most people think, which is pretty alarming. When I started here, over a decade ago now, as a brand new baby lawyer, I was definitely surprised at how often it really happens.

When I speak to women who have suffered from domestic abuse, they often ask me what they can do legally. As it relates to divorce, there are a couple of different options. But I do usually have this conversation about their specific legal options in Virginia alongside a pragmatic discussion of consequences, advantages, and disadvantages with each potential course of action.

I always start from a place that assumes that your safety, and the safety of your children, is your first priority. To that end, I often say that, if you feel unsafe, don’t worry about the ramifications to your divorce or custody case; take immediate steps to ensure your own safety. Whether that means going to stay at your mom and dad’s (even if that’s not nearby), staying at a hotel, calling the police, or doing pretty much everything (short of committing a crime yourself), do it. It make create some wrinkles in your case, depending on how everything goes down later, but we can worry about that later, after you’re sure you’re safe.

In general, I also recommend having a technology company do a sweep on your car, phone, computer and other devices to make sure that there’s no tracking technology. Be aware of cameras in your home, including who can access them and under what circumstances. Don’t rule out the cameras in terms of evidence, either; if there’s been an altercation, get copies of that footage if you can. I’m not saying you should necessarily disable them, as long as you have access to them, but be aware of them. Be aware of things like Apple Air Tags and other tracking devices that can be used. If you have the money to spare, consider purchasing your own devices (cell phone, tablet, computer, or whatever) and keeping them somewhere away from where he could access them. Change passwords or create new accounts. Use passwords he can’t guess. Do everything you can on your end to ensure that your communications are secure, that he can’t follow you, and that you and your children are safe. The rest will work out later.

Protective Orders

In Virginia, you can get a temporary protective order at the magistrate’s office. After that, to get a permanent protective order, you’ll have to go to court and argue your case in front of a judge.

It’s not easy to get a protective order; they don’t just hand them out like fliers on a New York street. You have to prove that you’re scared for your physical safety, so the judge will want to see evidence – pictures of bruises, doctor’s office or emergency room records, police reports, and so on. The more evidence you can gather yourself, the better. Text messages, emails, voice recordings and so on will all help. But, ultimately, as in anything litigated, it’s up to the judge.

A protective order is a quasi-criminal proceeding. If a protective order is granted, your husband (or child’s father) won’t be able to have guns in his possession, may not be able to enter the home, be unable to visit with his children (this depends on the case; it’s up to the judge whether the children are included in the PO or not), and so on. Ultimately, it could affect his job, especially if he’s military or has a security clearance – something you should be aware of if you’re hoping to receive spousal and/or child support.

You may choose to have a lawyer; you may also choose to attempt to get a protective order on your own.

At the end of the day, though, a protective order is just a piece of paper. Will it make you feel better? Will it keep you safer? It’s entirely possible that it will. For many couples, it’s the impetus they need to actually end the relationship. For others, it doesn’t change much. Ultimately, you know best how your partner will respond.

Fault Based Divorce

If your marriage has been abusive, that gives you grounds for divorce. You could use cruelty or apprehension of bodily hurt as your grounds, which gives you the ability to file for divorce immediately. You only have to have a reasonable belief that your grounds exist in order to file on them, so minimal ‘proof’ will be needed at this early stage.

To get divorced, you’ll need more evidence, so you may want to have a discussion with a lawyer about what that might look like in your case, or whether what you have on hand is enough. In most cases, though, the divorce isn’t finalized on fault; the parties eventually work out a separation agreement.

Filing for divorce is often a vehicle used to achieve specific goals, like getting exclusive possession of the home, establishing temporary child and/or spousal support, and getting certain restraining orders in place, which you can do in a pendente lite hearing.

I need to leave the home now. I’m not safe. What can I do?

Well, in both a fault based divorce and a protective order hearing, you can ask for exclusive possession of the home. But, if you don’t want to or can’t stay there and feel like you’d be safer to be somewhere else, you could also file on constructive desertion.

Constructive desertion basically means that the living situation within the home was so bad that your spouse forced you out of it. I wouldn’t suggest that you officially relocate with children really far away from home (like, if you’re going to stay in your parents’ home out of state), but you could go there temporarily. You might even send an email or text that says you’re going away for a bit but will be back. (If you don’t have children, feel free to go!) The kicker with constructive desertion is that, in order to claim it, you have to file on the same day that you leave.

If I take the kids, will I be convicted of parental kidnapping?

There’s no such thing as parental kidnapping when there’s no existing custody order or agreement in place. If you’re violating an order or agreement, that could be a problem – definitely don’t do that. But if there’s nothing in place, you haven’t kidnapped the kids.

I wouldn’t plan a relocation, though – at least, not yet.

Separation Agreement

At the end of the day, the question is always whether a particular action will actually keep you safer. Sure, you have these legal options, but are they going to make a bad situation worse, or are they going to actually protect you? You know your ex best, so you’re in the best position to judge whether you should (or need to) pursue a protective order or a fault based divorce.

In some cases, I recommend jumping straight to a separation agreement, especially if we have some leverage. A good example is if he’s in the military, and scared that his bad conduct will impact his career. A divorce, after all, is public record, so documents that are filed and oral arguments that are made could be discovered by his command, hurting his career.

It’s sometimes hard to judge. Sure, it feels good to do something about it when you’re scared, but there’s also a concern – at least on my part – about whether you’ll actually do more harm than good. Is he going to be more angry or volatile because you, for example, filed for divorce or obtained a protective order? If he loses his job or his security clearance, is he going to feel like he has nothing else to lose? Having someone who has at least something he cares about is good leverage, so we don’t want to send him off in the other direction.

I often find that litigation makes tense situations worse, at least in the short term. It concerns me that, in a case where domestic abuse is an issue, it would be a dangerous tipping point.

It’s impossible, too, to speak in generalities about these types of cases. We need to look at each case on its own; after all, what does it have to do with any other case? All that matters is you and your children and how we move forward to secure your safety.

For more information, or to schedule a consultation, give our office a call at 757-425-5200.