Criminal charges for domestic violence are already serious, but their implications for divorce can make the consequences of your situation even more complicated.
Domestic violence can have serious consequences, but they may extend beyond what most people expect. A domestic violence conviction comes with criminal penalties, but if a spouse can prove that the other is abusive, domestic violence can also have implications in a divorce case.
Your spouse’s abuse can directly affect the outcome of your divorce, and working closely with an experienced attorney from the outset is the best means of protecting your rights and yourself as you move toward a brighter future.
Domestic Abuse Statistics in Texas
The Texas Council on Family Violence (TCFV) shares the following statistics regarding domestic abuse:
- Family violence programs serve over 6,100 victims daily.
- Less than 25% of victims seek services.
- Over 1,000 requests for help go unmet daily.
While most people equate domestic abuse with physical abuse, it can take several of the following forms:
- Sexual abuse, which refers to engaging in any sexual act without the other person’s consent
- Emotional abuse, which can include humiliation, intimidation, constant criticism, and ongoing disapproval to erode the victim’s self-worth and independence
- Financial abuse, which is attempting to control the household’s income, assets, and resources with tactics such as limiting the victim’s access to marital funds, stealing from the victim, or defrauding the victim
- Psychological abuse, which is causing the victim to live in fear, such as through intimidation, the destruction of property, isolation from loved ones, or threats of physical harm to the victim, loved ones, or a pet
Domestic abuse can strip victims of personal autonomy and can have serious, long-lasting consequences.
Abuse and Criminal Charges
If your spouse’s abuse has escalated to criminal acts, criminal charges may be necessary to keep you and your children safe during this challenging transition. Domestic abuse laws in Texas don’t always require the police to have a warrant to make an arrest, including under the following circumstances:
- If there is evidence that someone was physically abused or injured
- If two domestic abuse incidents are reported within 48 hours
- If the officers have probable cause to believe the offender will continue physically abusing his or her spouse or another household member
Abusive spouses who are arrested face the following kinds of misdemeanor charges:
- Assault
- Criminal threat
- Harassment
- Trespass
The charge can be a felony if a weapon was used during the threat or assault.
Further, marital rape is a second-degree felony that carries a prison sentence of up to 20 years and fines of up to $10,000. If the rape involved threats, physical violence, or drug use, the charge can be enhanced to aggravated sexual assault, a first-degree felony that carries up to a life sentence.
Victims of domestic abuse aren’t required to testify against their spouses in court after filing a criminal charge, but they may testify if they choose.
Your Divorce
If your spouse is abusive, you can seek a divorce based on mistreatment. To do so, you’ll need to prove that your claim of abuse is true, which typically comes down to these kinds of evidence:
- Police reports
- Medical records of injuries you sustained at your spouse’s hand
- Photos of injuries you sustained from your spouse’s abuse
- The testimony of neighbors, family members, or others who witnessed your abuse
To obtain a fault-based divorce, you’ll need to prove that your spouse meets the criteria for abuse, which can be difficult. Your seasoned divorce attorney will leave no stone unturned in his or her focused efforts to identify your spouse’s abuse – regardless of the form it takes.
Emergency Protective Orders
Filing for divorce can amplify the abuse in your marriage, but seeking a temporary emergency protective order may help protect yourself and your children. You can obtain a protective order without a hearing and without notifying your spouse beforehand if you can demonstrate that your soon-to-be ex presents a clear and present danger to you or your children.
Emergency protective orders are issued for up to 20 days and can be extended for an additional 20 days. You must request a hearing before your temporary protective order expires to obtain a final protective order, which can last up to two years. Your divorce attorney has the legal insight and drive to help you obtain the legal protections you require.
The Cooling Off Period
Divorcing couples in Texas must wait at least 60 days from the date of filing for divorce before their cases can be finalized. This time is called a cooling-off period. Usually, divorcing couples require time beyond the cooling-off period to negotiate terms to which they can agree.
If you are the victim of abuse, the court recognizes the increased risk you face in your divorce and can waive the 60-day waiting period. If your spouse has a domestic violence conviction or if you have obtained a temporary emergency protective order for abuse, the court can speed up your divorce process.
Abuse and Property Division
In Texas, the assets that couples acquire while married are considered marital property – regardless of who made the purchase and whose name is attached to the asset. Upon divorce, these assets are divided between both spouses fairly, which can mean equally but, depending upon the circumstances, can instead be divided in one spouse’s favor.
While a range of factors come into play in the process of dividing marital assets fairly, fault is one of them, and it can make a substantial difference in how this divorce term is resolved. Your spouse’s abuse can lead to a division of property that favors you.
The following factors are also taken into consideration when dividing marital property:
- The overall size of the marital estate
- Each spouse’s separate estate – or the assets each of you brought into the marriage with you and kept separate throughout
- The length of the marriage
- Each spouse’s contributions to the marriage, including homemaking and childcare
- Each spouse’s age and health
- Each spouse’s education and earning potential
- Each spouse’s job history
The division of marital property can quickly become complicated, so it is always best to proceed with a skilled divorce lawyer on your side.
Abuse and Child Custody Arrangements
A spouse’s abuse can also affect child custody arrangements. Texas courts are guided by the children’s best interests, and, all things being equal, this priority translates to each parent receiving generous parenting time. However, when one parent is identified as abusive, it can affect the time he or she can spend with the children – and the parameters for visitation.
A parent is only denied all visitation with his or her children under very serious circumstances. However, the court may seriously limit the parenting time an abusive spouse receives and may require supervised visitation. Supervised visitation can be in the parent’s home or in a facility designed to ensure that the children are well protected throughout these visits.
Often, a spouse who is identified as abusive is required to seek help through the following resources before supervised visitation is allowed:
- Anger management courses
- Drug rehabilitation
- Battering intervention and prevention programs
A parent with a history of family violence or domestic abuse cannot be granted sole custody of a child in the State of Texas.
Abuse and Spousal Support
Abuse can affect whether alimony is awarded as well as the amount. Alimony is reserved for cases that leave one spouse without the financial means to address reasonable needs in relation to the standard of living achieved during the marriage while the other has the ability to help.
Many victims experience abusive financial control, which can leave them at a financial disadvantage that the court recognizes and can address through spousal support.
If your spouse was convicted of family violence against you or your children within two years of your divorce filing or while your divorce was pending, it can affect alimony and the involved terms. Consult with a divorce attorney to learn more about how spousal support will play a role in your divorce.
Abuse and Child Support
Both parents are responsible for supporting their children financially – whether they are married or not. Upon divorce, many factors go into the child support calculation process, including the following factors:
- The number of children
- The children’s ages and developmental stages
- The children’s needs, including any special needs
- The cost of health insurance coverage and who pays it
- Any out-of-pocket medical expenses
- Each parent’s income
- Each spouse’s parenting time
- How well the children’s current living situation, home, schooling, and community work for them
- Whether abuse is an issue
If your spouse is abusive, you are very likely to be the primary custodial parent, and your spouse’s parenting time will likely be limited. As such, your ex will almost certainly be required to make child support payments.
Turn to an Experienced Texas Attorney for the Help You Need
Criminal charges for domestic violence are already serious, but their implications for divorce can make the consequences of your situation even more complicated. If you find yourself in this situation, you need the guidance of an experienced Texas attorney.
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