Spousal abuse how does it affect the divorce?

Regardless of why couples are getting divorced, the process is difficult. Add spousal abuse to the mix and there are even more emotions and potentially an increased level of danger to leave a marriage.

Legally, however, most states allow couples to divorce under a no-fault divorce, which means you will not have to prove to the court that your spouse was at-fault (i.e., he abandoned you, he was mentally incompetent, he committed adultery, etc.). When you file for no-fault divorce you will simply state that your relationship is irretrievably broken.

Whether or not domestic abuse will be a factor in your divorce, specifically, how property will be divided or custody for the children will be determined, will generally depend on state laws.

Property division and spousal abuse

States that consider fault in divorce proceedings are more likely to consider spousal abuse when determining property division. Other courts will only consider the spousal abuse relevant if the divorce spouse can prove that it was the cause of the marital breakdown.

Still others may allow for abuse to factor in property division if the abused spouse can prove that the spousal abuse had a negative economic impact on them during the marriage (i.e., they missed employment opportunities, had increased absenteeism due to injury or illness that was a direct result of the spousal abuse, or they had increased health care costs).

Other states, such as New York, Michigan, and Kansas, have held, in varying degrees, that spousal abuse is only relevant to property division if the violence was “egregious.” As you might imagine this can often be subjective, and different courts have had different rulings.

Still other states, such as California, do not consider fault at all when distributing assets. States which adhere to this principle are following the Uniform Marriage and Divorce Act and allow the courts to divide assets without regard to a spouse’s conduct.

The good news, if there is any when discussing spousal abuse, is there are many jurisdictions that will consider domestic abuse when deciding how to divide marital property. Talk to a divorce lawyer if you have specific questions about your state’s laws.

Spousal abuse and custody of children

State laws will determine how spousal abuse in the marriage will affect child custody. For example, in California, a judge will consider your case a “domestic abuse case” if in the last five years one parent has been convicted of domestic violence against the other parent or a court has decided that one parent committed domestic violence against the other parent or the children.

What if the case meets the California state law requirements as outlined above? Usually, the judge cannot give custody to the person who committed domestic violence (although the abuser may be given some type of visitation rights).

The courts generally assume that placing a child in the custody of a person who has committed spousal abuse or domestic violence is not in the best interest of the child (unless they are convinced otherwise through a preponderance of evidence).

Bottom Line:

State laws concerning the impact of domestic abuse on a divorce will vary by state. Some states will consider domestic abuse as a factor in the division of property; other states will not.

Child custody laws also vary by state, but all states will have provisions to protect children from spousal abuse. States will also make custody decisions which they believe are in the best interest of the child.

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