Getting Out of an Abusive Relationship? What Every Woman Should Know About Divorce & Custody
This article can’t provide the answer to every question you may have about how the legal system will handle your case. Just as every woman’s situation is different, so are the laws of every state. What this article can do is provide a general understanding of what you’ll face in court and tell you where to go for help.
Contact Your Local Domestic Violence Shelter
The most dangerous time for a woman is when she leaves her batterer. Therefore, the first thing you should do when you decide to leave your abuser is contact a domestic violence shelter. Your local shelter can help you develop a safety plan and can provide temporary housing if you decide to move out of your home.
Many shelters can provide legal assistance. At a minimum, shelters have legal advocates who, although not licensed attorneys, are familiar with the legal system and can help demystify the process. If you plan to represent yourself, an advocate can help you complete the appropriate forms (and probably also has copies on hand). The advocate will also know the domestic violence laws in your state – sometimes even more so than licensed attorneys – and can explain specifically how they will affect the divorce or custody proceedings. Some shelters may have a staff attorney who can take your case at a reduced fee. If there is no staff attorney, the advocates will be able to direct you to no or low-cost legal services or point you in the direction of a family law attorney who understands the unique issues facing battered women. Advocates will also, at your request, accompany you to legal appointments and help explain what is going on.
To locate a shelter in your area, visit www.ncadv.org and click on the link for State Coalitions under the Resources tab.
How Domestic Violence Factors into the Divorce
Most states are “no-fault” divorce states, which means that the court cannot assign blame when granting the divorce and dividing the property. This is why you hear that most marriages end due to “irreconcilable differences.”
But judges are human, and just because legally they cannot assign fault in a divorce doesn’t mean that they won’t consider the history of abuse in your marriage when dividing the property. When the court divides the property they start with the assumption that a 50-50 split of the marital property is the fairest division (you will sometimes hear this referred to as “equitable distribution”). Marital property is everything that you and your spouse earned or purchased during marriage, and any property that you came into the marriage with but used in such a way that it is considered marital. But a 50-50 split isn’t always the most equitable, and the court has discretion to divide the property in the manner it feels is most fair given the circumstances.
When making a division the court will consider, among other factors, the length of the marriage, the earning capacity of both parties, and whether one spouse stayed at home to raise the children. In many situations it is likely the batterer’s actions during the marriage will work against the court’s granting a 50-50 division. Many batterer’s don’t allow their partner to attend college or take courses that would increase their earning capacity; many also forbid their partners to work, which means that their skill level for obtaining a good paying job is low. The batterer’s past practice of isolating his partner from the outside world will make it more likely that the court will find an unequal distribution of the property in favor of the wife is the fairest division. There is also the possibility that the court may award alimony, whether for a certain period of time – 10 years or until the wife remarries – or for a specific purpose – so the wife can earn a degree to increase her earning capacity.
Depending on the court calendar you may have to wait six months or more before you get an actual trial. In the meantime, you can petition the court to issue an order which grants interim access to property. This means that the judge can grant a temporary award of the house, for example, to one party until a final decision is made at trial.
You may also hear the judge or your partner’s attorney speak of mediation. Mediation is a process where a neutral third-party (it may be a trained mediator, an attorney or retired judge) meets with both parties to try and reach an agreement to keep the matter from going to court. It is not the same as court in that the mediator cannot make a decision, nor can she make the parties agree. If the mediator fails to help the parties reach an agreement, the case will proceed to court.
Mediation is generally not recommended for parties with a history of domestic violence, as it is based on the assumption that both parties have equally bargaining power and, to some degree, can negotiate fairly to try and reach a mutually agreeable resolution to their differences – traits missing from a relationship characterized by violence. If your partner’s attorney or the judge raises the possibility of mediation and you have concerns, you should voice them to the judge.
The Michigan court system has an online sample screening tool for mediators to use in determining whether a battered woman should participate in mediation.
How Domestic Violence Factors into a Custody Determination
The history of violence may also help you win sole legal and primary physical custody of your children. Sole legal and primary physical custody are two different things. Legal custody refers to the parent who has authority to make day-to-day decisions regarding the child – where he goes to school, what religion he is brought up in, and whether to seek medical treatment. Physical custody refers to the parent who has actual physical custody of the child. If you are awarded primary physical custody, it means you have the child approximately 70% of the time, although this percentage may vary from state to state.
Shared legal custody is not generally recommended where there is a history of domestic violence, because it assumes that the parents are on equal footing and can communicate regarding the children. This is impossible where one parent has tried to dominate and control the other.
The court awards custody based on what is in the child’s best interests. The factors that a judge must weigh vary from state to state, but generally involve a determination of the child’s physical, emotional, and religious needs, and the parent better able to meet those needs; the length the child has lived in a stable environment and the desirability of maintaining continuity; substance abuse on the part of either parent; the love and affection existing between parent and child; the child’s preference if of a sufficient age; and the ability of each parent to foster an open relationship with the other.
A court should never award custody to a parent with a history of abusing the other. Even if the batterer has never physically harmed the child, a child who witnesses violence between his parents suffers emotionally and psychologically. It is not in a child’s best interest to be raised by an abusive parent, and it is important that the judge be made aware of the batterer’s history of abuse and how it has affected your children when making a decision regarding custody of the child.
As the effects of domestic violence on children have become more well known, some states have enacted tougher laws that make it difficult for a batterer to be awarded custody. For example, Alaska passed a law in 2004 creating a presumption that a parent who has a history of perpetrating domestic violence against the other cannot be awarded sole legal or primary physical custody of the minor children unless he has completed a batterer’s intervention program, can show that he doesn’t have a substance abuse problem or can demonstrate that he should have custody because mental illness or substance abuse on the mother’s part requires his involvement.
For information on laws in your state, visit www.womenslaw.org.
Child support is determined by a statutory formula that takes into consideration each parent’s income, the amount of time the child will spend with each parent, and a variety of deductions and credits, such as who provides healthcare for the child and whether there are other children to support. Many batterers seek shared custody to try and get out of paying child support. The judge will determine the amount of support each parent will have to pay at trial.
Batterer’s often use child support as a means of controlling his ex-partner, by either sending monthly support checks late or not sending them at all. If your batterer is late getting child support checks to you, most states have a Child Support Enforcement Division that you can use as a go-between. By registering with this program, your child’s parent will have to send support payments directly to the Division, which will then forward them to you. If he refuses to pay, the Division can also garnish his wages.
Get a Protective Order
If at any time during the proceedings your batterer threatens, harasses, intimidates or assaults you or your children (or any friend or relative that you may be staying with), you should get a protective order immediately. Your safety during this time should always be your primary focus.
Divorce and custody proceedings are stressful even in relationships without a history of domestic violence. But that shouldn’t stop you from taking what could be the most important step of your life. There are people out there who can help you. Don’t let your fear of the unknown keep you in an unhealthy place. You – and your children – deserve better.
