Domestic Violence and Divorce
Domestic violence and divorce go hand in hand in a lot of cases. At first, that was a surprise to me. I didn’t realize quite how dangerous so many women’s family situations were. Maybe that was naïve of me, but I really didn’t realize, until I got into the practice of law, how many women are affected by family violence.
If you’re one of those women, you should know that you’re not alone, and you’re not without options. That doesn’t mean that any of this is a walk in the park, but it does mean that the more information you know, the better choices you can make for yourself and your children moving forward.
If my husband is violent, what should I do?
If your husband has been violent, divorce is probably not going to be the first thing on your mind. If you’re seriously afraid for your life and your physical safety, you’re going to want to take steps, first of all, to protect yourself. Obviously, your physical well being is the number 1 most important thing, and you’ll want to take care of that first of all.
I’m not a counselor, and I’m not particularly experienced in advising people on non-legal steps to take. If you’re experiencing violence, you may want to talk to a counselor or someone about coming up with a safety strategy. If you’re in physical danger, you’ll certainly want to leave—and I know that counselors generally recommend that battered women have a safety strategy. For example, you may want to have a packed suitcase somewhere, so that you have things to use if you’re forced out suddenly and don’t have time to pack. You’ll want to ask a friend or family member if you can stay with them. You may even want to set aside some money for expenses, especially if you can put it somewhere that you know he won’t be able to find it. There may be some other tips and tricks, too, but you’ll probably want to talk to a therapist or counselor about all of your options first.
As far as the legal steps you can take, you’ve definitely come to the right place.
If your physical safety is in jeopardy, you should seek a protective order. You can go to the magistrate’s office to get one immediately, if something has happened that has forced you to leave your home. You can get one for 48 hours, after which you’ll have a hearing for a temporary protective order, and then another hearing before a permanent protective order.
The permanent protective order, obviously, is the hardest one to get, and that’s the point at which some women choose to hire an attorney to represent them. Generally speaking, my office doesn’t handle protective orders; we recommend instead that you get a criminal attorney.
In Virginia Beach, though, for protective orders placed on the Friday docket, there are free attorneys there. They are attorney volunteers for the CLASS program, and they handle whatever protective orders are scheduled for that day pro bono. You can opt to use a CLASS attorney, or you can hire your own—or, even, go on your own, if you prefer—and it’s entirely up to you. If you’re in a court system other than Virginia Beach, you might ask whether there are any attorneys who handle protective order cases pro bono—but I don’t personally know of any. (Keep in mind, pro bono stuff is pretty rare.)
What happens if I get a protective order?
If you get a protective order, your husband isn’t allowed to have any contact with you. He can’t text, email, visit, drive by, or get in touch with you in any way. (Sometimes, people ask to be allowed to text so that they can deal with custody and visitation exchanges, but that’s up to the people involved.)
You’ll also be able to ask for exclusive possession of the home. He will have to find somewhere else to go in the mean time.
A protective order can also involve the children, if necessary, but it doesn’t have to. If your husband’s behavior has jeopardized your child’s safety, you’ll want to mention that in your protective order hearing.
A protective order is criminal, so it has criminal consequences for the person against whom a protective order is issued. A person with a protective order can’t possess guns, either.
A protective order is a piece of paper, but you can use it to enlist the support of police officers in the event that you run into trouble.
You don’t have to hire an attorney to represent you if you don’t want one, but in order to have a protective order granted you’ll have to make a showing that you legitimately feared for your safety. Feel free to bring any evidence you have, including pictures, text messages (though you’ll need to print them off, because phones aren’t allowed into the courthouse), videos, recordings, and so on.
What do I need to know about divorce when there’s domestic violence?
Once you’ve gotten your physical safety taken care of, it’s time to start thinking about divorce.
Divorce isn’t easy under the best of circumstances, but when there’s domestic violence involved, it can be even more difficult to navigate.
As far as divorce procedure is concerned, technically domestic violence entitles you to file for divorce using fault based grounds. You can cite either cruelty or apprehension of bodily hurt, both of which are provided for in the statute, and both of which, obviously, encompass something related to domestic violence. We’ve used these grounds to file on both physical and emotional violence, so it doesn’t have to mean that he has raised a hand to you. (Although oftentimes it does.)
You should know, though, that a fault based divorce is often more time consuming and expensive than an uncontested no fault divorce. That doesn’t mean that you shouldn’t file on fault, but it does mean that, before you do, you should take some time out to talk to a divorce lawyer about your options and what might be most advantageous in your case.
In my experience, the things that I’ve seen that are worst for women who’ve experienced domestic violence are negotiations. While it’s fine to negotiate a separation agreement with an attorney or someone there to defend you and be in your corner with you, it’s often difficult for battered women to hold their own in one on one negotiations with their husbands. We often discourage mediation and self representation in cases where there’s domestic violence mostly because we find that where there’s an uneven balance of power, the results are generally stacked towards the abusive spouse. It’s hard for a battered woman to stand her ground and argue for what she deserves, so we recommend that women who are victims of domestic violence hire a divorce lawyer or enlist the support of a professional.
Does the court care about domestic violence in divorce?
Well, now you’ve cut to the heart of the matter. It depends on what you mean by “care.” The judge does care about domestic violence in the sense that it makes up a grounds for divorce and, as a result, you could be entitled to a divorce based on those grounds—if, of course, you can prove that your grounds exist. In that sense, of course, it “matters” that you’ve been abused, and the judge will certainly listen to evidence, witnesses, and exhibits you have that corroborate your testimony.
Technically, too, under Virginia law a “negative nonmonetary contribution” to the family can be taken into account to justify an award of assets that is something other than 50/50. (Translation: you could receive more because of the domestic violence.) Does that generally happen? No. In fact, not very often.
More often, judges view divorce as a business transaction. They look at the money that exists in the marriage, and divide it between the parties as “equitably” as possible. They’re not going to leave him destitute, in most cases; in fact, most of the time, when it comes to equitable distribution, fault-based grounds have very little impact at all.
It’s possible, though, and to find out whether his abuse will make a difference in your situation, you’ll want to call our office and schedule an appointment with one of our divorce lawyers. You can reach us at (757) 425-5200.