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Preparing a Final Order in a divorce involving family violence

In a perfect world, a final decree of divorce would only be used as a fallback measure for families after a divorce has been completed. You and your ex-spouse would be able to work together to settle issues on your own and to deviate from the orders when and if the need arises. In doing so, you would have a much more flexible situation and based on the needs of your family. Your family would be happier and more cohesive, and your need to return to court over issues related to your divorce would be significantly reduced.

If you are working through a divorce that involves family violence, you know that your world is far from perfect, however. Not only is your family unit dissolving before your eyes, but your ability to co-parent with your soon-to-be ex-spouse is minimal because of their issues and history of abusing you and your child. In situations where most families could resolve their conflicts with words, your family may have to head back to court for any resolution. This is not ideal, either for you or your ex-spouse.

Recommendations for language to be included in your Final Decree of Divorce

In anticipation of a return to court or to ensure yourself the best opportunity to arrive at a comprehensive and well-written divorce decree, it makes sense to be as specific as possible in drafting your final decree of divorce. There will be fewer questions about what a particular order means and less of a reason for you and your ex-spouse to talk and interact. While I usually would encourage ex-spouses to communicate, if your ex-spouse has a history of being violent with you, this is not a desirable outcome.

An ideal Final Decree of Divorce anticipates future events that your family could encounter and then considers those future events. For instance, you should make sure that your order is as specific as possible when exchanging locations and times for alternating periods of possession of your child. Think ahead to determine if the location is safe and feasible for you. A location may be convenient for your spouse but not for you. Likewise, you may not feel safe in a particular place and should make this known to your attorney.

Who is enabled to pick up and drop off your child during possession exchanges under your order?

Often a Final Decree of Divorce will include language that allows a competent adult to accompany a child for drop-off/pick up at these exchange points. If, for instance, your spouse is stuck at work until 7:00 p.m. on a Friday when he can have his mother pick up the kids from your home. Most of the time, this is a harmless setup that is engaged in primary to make the logistics work when it comes to picking up/dropping off your child.

In situations involving family violence, there may be people you are not comfortable with picking up or dropping off your child. For instance, if your ex-spouse has family members who have been threatening or unpleasant for you or your child to deal with, it may be appropriate for your attorney to raise this point. You should have included these people in your final orders that are specifically named as persons that cannot assist in pick-up/drop-off situations.

Do you need to include limitations on travel- either domestic or international?

Violence is a means of exerting control over a person. If your spouse has been violent with you or your child, the likely motivation is control. After you and your spouse divorce, their ability to control you and your life is diminished, so they may be looking for a new way to exert some control over you.

With this in mind, you should consider having language inserted into your final decree of divorce that requires both you and your spouse to notify the other parent in advance of any overnight trips that will be taken while your child is in either of your possession.

It would be up to you how specific you would like it to get, but I have seen orders include day-by-day breakdowns of where you all will be and your emergency contact information.

For international travel, you and your ex-spouse need to determine who will hold on to your child's passport when travel is not occurring. Typically, the parent with the right to determine your child's primary residence can hold onto the passport. This is done so that the nonprimary parent cannot scoop your child up on a weekend visit and take them abroad with your knowledge or consent.

Enforcing a Final Decree of Divorce

Making it through your divorce is challenging enough before you consider the possibility of having to return to court if your ex-spouse violates your orders. For a person who has a history of engaging in family violence, it is likely that they feel above the law and cannot be held responsible for their actions. A court order is no reason for them to stop acting in any way that they please towards you.

Thankfully, Texas family law courts allow you to file enforcement lawsuits if and when your ex-spouse has violated your Final Decree of Divorce. Often this is the only remedy that you will have available to you in the situation because, in your ex-spouse's mind, they are always justified in doing whatever they happen to be doing at that time. As a result, reasoning with them or pointing out the specific areas that violate the court's order will not be practical.

Consider whether or not your divorce held your ex-spouse accountable for their past evil acts of abuse. If your ex-spouse is likely to have thought that the court is now a partner in allowing them to act however they would like regarding you and your child, this is a dangerous sign. You are being put in an unenviable position of needing to protect yourself and your child while ensuring that your ex-spouse does not walk all over either of you.

In this situation, you should take a violation of the court's order to file an enforcement suit against your ex-spouse. Nip this behavior in the bud and seek to ensure that it does not happen again. This will require that you hire an attorney and file a new lawsuit which I realize can consume both time and money. However, you can either do so at this stage or a later stage when your ex-spouse may have grown more aggressive in taking liberties with the court order.

Remove any drama from the situation by asserting your rights immediately. Note the specific instances where your court order has been violated and specify the remedies from the court that you seek due to the violations. An enforcement case requires that specific language be included in the petition, so you should hire an attorney before doing so.

Questions on divorce and domestic violence? Contact the Law Office of Bryan Fagan, PLLC

Thank you for your time in reading our series of blog posts that dealt with domestic violence and divorce. No divorce is easy, especially one that involves family violence. These types of cases require special attention and knowledge of how the law can help and protect you and your family. The attorneys with the Law Office of Bryan Fagan, PLLC, have the experience you need to proceed with a case like this.

To learn more about divorce in Texas, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. We can answer your questions and discuss the services we can provide to you as a client of ours.

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