Divorcing an Abusive Spouse

Divorcing an abusive partner is a scary endeavor. According to the Department of Justice (“DOJ”), approximately four million people are in relationships in which domestic violence causes ongoing harm. A recent DOJ study found that 95% of domestic violence survivors are women and about 40% of physically harmed children witnessed violence between their parents. The most important action a survivor of domestic violence can take is gathering the courage to leave or divorce his or her partner.

Domestic violence is a pernicious problem without easy solutions. The only real solution is for survivors to leave the home, get a restraining order, and divorce their partner. The legal process will force the survivor to recount the abuse and substantiate it to the court. These proceedings are traumatic, but it is a necessary experience to protect the survivor and his or her children.

Safety First: Leaving the Home if Necessary

Partners who fear for their safety or the safety of their children should leave the abusive home first and seek legal counsel second. However, sometimes leaving the home is not enough. Abusive partners can and do track down survivors and continue to victimize them. If necessary, survivors can contact local non-profit organizations or government agencies. Many cities and counties maintain domestic violence shelters that keep residents’ identities secret. Police officers can also arrest and charge offenders.

If circumstances permit, it is sometimes better for the survivor to remain in the home because leaving the house without a court order could affect spousal support. However, victims should put safety first. If a partner fears for his or her safety – he or she should immediately leave the home.

Restraining Orders: Civil and Criminal Orders, and Protective Orders

In filing for divorce, partners can petition the court for a restraining order. Some states allow the courts to impose restraining orders on an ex parte basis (without notice or opposition from the other party) for a short-term solution. If imposed, the initial restraining order must be substantiated by evidence and testimony at a later hearing.

The restraining order prohibits the abuser from contacting or approaching the survivor. If the abuser violates the order, he or she may be subject to criminal and civil penalties, including arrest and criminal charges. In some situations, it is possible for a survivor to also seek a criminal restraining order imposed after an abuser is arrested on domestic violence charges. However, these orders are only as effective as they are enforced. Survivors should document every instance their former partner violated the order – every text, every email, and every call.

Getting the Divorce

Filing for divorce is the final step. In a divorce proceeding, the court will separate the marital assets, assign parental privileges, and issue orders on ongoing and future spousal and child support. The courts can and do take into account allegations of domestic violence when deciding custody and visitation. If the court substantiates the allegations, it could restrict or even forbid visitation. For example, the court might assign court-supervised visitation, which may require the abusing parent to pay for a therapist or security officer while visiting with the children.