Domestic and family violence are interchangeable terms in the world of family law. Family violence relates to the harm suffered by adults or children in the context of a family or domestic relationship- centered around the family home. Family violence is constituted by members of a family or household engaging in violent acts with one another. This broad definition can encompass spouses, children, cousins, grandparents, etc. People that were dating or are currently dating can also be said to be in a situation where family violence may result.
Family violence also does not have to include physical abuse. Threats, stalking, sexual abuse, physical abuse, and the use of drugs in the home can all be included in a charge of family violence. Your children are a central focus of family violence prevention in Texas. To wit, if there has been violence in your home or if you feel like your children are not safe then you should reach out for help immediately. There are violence prevention hotlines in your area as well as a National Domestic Violence hotline that you can reach out to.
One of the main issues that is on the mind of many people in your shoes is that a divorce can make domestic violence situations worse. While it is difficult to say how your particular situation will play out it is clear that in most cases violence is about control and the ability to control another person. When you do things like move out of the house, take your children out of the dangerous situation, and file for divorce you are placing less control in the lap of your spouse and keeping it more for yourself. This can make the violence worse. Be aware of this and have a plan as to how you are going to react.
Family violence within a Texas divorce
In Texas divorce cases there is a standard, 60-day waiting period for your divorce to complete itself. This waiting period usually does not come up very often just because most divorces take longer than 60 days to wrap up. However, time is critically important to someone who has been a victim of family violence. You will want your divorce to wrap up as soon as possible if you have been the victim of family violence. As a result, the waiting period that is standard in a Texas divorce is waived in order so that your case may be resolved faster.
A temporary restraining order can help you protect yourself and your family. You should speak to an experienced family law attorney about getting a restraining order against your spouse from the outset of your case. This temporary order can prevent your spouse from coming within a certain distance from you, your children, your workplace, or your child’s school. This is important when you feel unsafe and otherwise like you cannot adequately protect yourself and your children. The temporary restraining order will be in effect for up to 28 days until you either have an opportunity to attend mediation with your spouse or a temporary order hearing before a judge.
Custody issues related to your children can be impacted by family violence, as well. For instance, the question of where your child is going to live on a primary basis is a critical one in a divorce case. Determining where your child lives is important because that will determine which parent can see the children more frequently and which parent will receive child support. This is an issue that also frequently takes parties to a point where they need to speak to the judge in a trial if the issue cannot be negotiated in mediation.
Family violence puts issues as being very difficult for your spouse to overcome if he or she wants to become the primary conservator of your children. Making decisions that are in the best interests of your children is the key part to being able to become the primary conservator of your children. If your children cannot feel safe and are not able to live a life free from the threat of abuse, then that will certainly harm your spouse’s ability to argue that he or she is the best option to become their primary conservator.
Medical decisions, educational choices, and even things like religious upbringing are all impacted by which parent will be able to win primary conservatorship rights in the divorce. Family violence calls into serious question parents' ability to make decisions that are in the best interests of their children. Above all else, it calls into question their ability to control their emotions and regulate themselves daily. When we talk about family violence, we are talking about someone harming a person in their immediate household much of the time. This is a significant threat to the well-being of your children.
Possession issues are also impacted by family violence. Parents share custody time with their children during and after a divorce. It is only in rare and extreme circumstances that a parent does not receive a considerable amount of visitation time with their children after a divorce. A situation involving family violence would seem to be one of those extreme situations. Much of the time a parent will not be able to have visitation with their children that is not supervised by another person. Either a family member or a supervised visitation facility will need to supervise these visitation periods so that the children can be kept safe.
Much of the time these supervised visitation periods can come to an end soon after a divorce but only after certain benchmarks are met. Sometimes a parent who has supervised visitation can grow into unsupervised visitations and overnight visits over time. That is something that you and your co-parent can negotiate through given the circumstances with your family, your child's specific needs, and the nature of their past actions towards domestic and family violence.
How does family violence impact property division in a divorce?
Property division in a divorce can be impacted a great deal if family violence is found to be an issue. For families who have dealt with family violence, it can be a harrowing experience. However, it is not just custody issues that are impacted by family violence findings. On the contrary, financial issues related to the division of the marital estate can also be impacted potentially by family violence.
For instance, Texas is a community property state where all property acquired while your marriage is presumed to be owned by both spouses. It does not matter who earns more money or who works outside the house. It also does not matter whose name appears on the title of the home or other property. Judges typically view situations like this as being ones where a just and right division of the property is correct. This means the judge will use different criteria to determine how to divide up the community estate. In many, but not all, cases this means property will be divided in an even fashion. However, with the introduction of family violence into the situation you are looking at circumstances where a division of the community property that is not 50/50 may occur.
Related to the subject of property division in a divorce is that of spousal maintenance. Spousal maintenance is a kind of post-divorce spousal support where you receive an order from the court that you are to receive support for a specific period after the divorce comes to an end. In most cases, the party who is asking for spousal maintenance must be able to show that without financial assistance, he or she would be unable to meet their minimal, basic needs.
Family violence makes it so that this is not necessarily the case. If you have been the victim of family violence within two years of the divorce having been filed, then that means that you are in a situation where you can be granted spousal maintenance after the divorce regardless of your needs in the divorce case. This is especially true if you and your spouse do not own sufficient property to allow you to get on your feet after the divorce. You will eventually need to find work to sustain yourself and your children but in the period after the divorce, you will be allowed to adjust to life with the assistance of spousal maintenance. It is a requirement that your spouse was found guilty of family violence or received deferred adjudication within two years of the divorce starting.
What is a protective order and can it help you?
Family violence means that you should also investigate obtaining a protective order. A protective order can be obtained in addition to a divorce case, but you should not just ask a court for a protective order without first having filed for divorce. A protective order can order your spouse to leave your home, to stay away from you and your children, to not carry a gun, to not hurt you or your children, and can also set the confines for visitation with your children. Child support and medical support can also be determined in a protective order hearing.
Can you get a protective order when you’ve only been threatened?
In other words, if your spouse has not abused you or the kids – but has threatened to do so- can you still attempt to obtain a protective order? If a judge decides that family violence is likely to occur again in the future or that family violence has already occurred then you can have a protective order granted in your case. Family violence also includes an act that is intended to result in physical harm, bodily injury, assault, or sexual assault. Threats that reasonably place a person in fear of imminent physical harm, bodily injury, assault, or sexual assault are also encompassed within the definition of family violence.
Even if the violence in question occurred a long time ago and was never reported, it can still form the basis for a complaint against your spouse for family violence. Keep in mind, however, that the judge can assign an amount of weight to the allegation. How long ago the incident occurred and the type of evidence that you must substantiate the allegation is an important factor to consider for a judge. If you did not report the abuse to the police, then that does not stop you from taking note of that act of family violence in a petition for a protective order.
Emotional abuse is also an issue that comes up frequently in divorce and family violence situations. If you are asking a judge to grant you a temporary restraining order, then the judge must find that you have suffered immediate and irreparable injury as a result of emotional abuse. You can get a TRO granted for 14 days and it can be extended by your request for another 14 days. This should allow you time to keep yourself safe while you wait for a hearing before the judge. The protection can be continued if the judge believes that the situation merits it.
Are protective orders and restraining orders the same thing?
Protective orders and restraining orders are two different forms of protection for you and your children which can be obtained during a Texas divorce. A temporary restraining order can be used to tell your spouse what you can and cannot do as far as behavior towards your spouse is concerned. A temporary restraining order may prevent you or your spouse from withdrawing funds from a jointly held bank account while your divorce is ongoing. Keep in mind that violations of a temporary restraining order are not criminal. You can go back to court to enforce the terms of the restraining order, however.
On the other hand, a protective order is a court order that demands that your abusive spouse stop acting in harassing, violent or threatening ways against you and/or your children. Police can act on a protective order that has been violated as opposed to a temporary restraining order which is strictly civil.
What can you do to help yourself if you have been the victim of family violence?
Everyone is different in terms of how we respond to bad events and trauma. For one, you may feel comfortable speaking to someone about the trauma to start building a road toward recovery. That person you speak to maybe a family member, friend, or therapist. It is up to you to choose who you want to talk to about the incidents – if anyone. Nobody can force you to speak to another person about the trauma that you have gone through. However, many people in your shoes have found that it can be very helpful for you to do so, however.
Having a safety plan for your family is critical at this stage in the game, especially if your spouse has shown a propensity for violence. There is no telling the next time your spouse may attempt to be violent with you. Additionally, you do not know if your spouse is going to increase the level of violence that you experience for any reason or no reason at all. For instance, you may need to keep a supply of clothes, and other essentials handy in case you need to leave the home at a moment’s notice. A quick way out of the house and keeping an extra set of keys by the door or in a hidden place can be a good way to plan a quick exit.
You also need to have a place where you can stay if violence occurs in the home. Do you have a friend or a family member with whom you and your children can be safe for a few nights while you sort through your legal options? What about a family violence shelter that can help you in the short term? Keeping family and friends aware of the situation is wise. Even if it makes you feel uncomfortable it can be a great benefit to be able to help your family be aware of what you are engaged in if you are working to keep your family and yourself safe from an abusive spouse.
Finally, working with the right family law attorney can be exactly the advantage that you need to keep yourself safe from harm moving forward. Nobody can predict the future with 100% accuracy, but once your spouse has shown a willingness to abuse you or your children then it becomes more likely that he or she will be willing to do so in the future, as well.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.