Domestic Violence

Divorce and an Abusive Spouse by Cassandra Hearn

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Domestic violence comes in many forms.  Not only physical abuse, but emotional and financial abuse continue to occur in many marriages.  Divorcing a spouse is always difficult, but when the spouse is abusive, it becomes an even more complicated situation.  

First, safety is always the first priority when divorcing an abusive spouse.  There is no law that provides you must remain in your home, and barring a court order to the contrary, you can take your children with you when you leave.  As soon as you leave, you can file an emergency motion requesting immediate custody of your children to make sure that they remain safe during the pendency of the divorce.  You should also be aware that simply leaving the marital residence does not mean that you have abandoned your interest in the home.  You will still be awarded your community share of property even if you have to leave the home because of abuse.

Second, it is very common for abusers to attempt to force victims to stay by threatening to withdraw all financial support.  Fortunately, the courts have the power to make an order the will specifically provide for the division of bills and payment of temporary support.  This means that you can request that the court force the abuser to provide you with continued financial support during the case so you can provide yourself with necessities, such as food and lodging.

If your abuser has been physically abusing you or threatening to do so, the court can also enter a restraining order preventing him or her from coming around your or the children.  This can include not only your home, but also your work and the children’s school.  You do not have to wait until your spouse actually physically strikes you to request this type of order.  The definition of domestic violence in California includes the threat of abuse, both to you and to children under your care. 

Finally, you should know that California law specifically takes domestic abuse into account when making custody orders.  A child custody determination is usually made based purely on what is in the best interest of a child.  However, where there is domestic violence involved, a court must take into account a history of domestic violence not only between the abusive spouse and the other parent, but also between the abusive spouse and children (including children that are not of the marriage), another romantic partner, another roommate, or a variety of other people.

If you are involved in a domestic violence relationship, you have rights in your divorce.  Call us today so we can talk about how we can protect you and your children