The Storm of Domestic Violence: Divorce, Child Custody, Support, and Community Property

While the #MeToo movement has brought substantial media attention in the USA to issues on sexual assault and domestic violence, and though the movement has brought many famous men in positions of power to justice, such abuse continues to be a huge problem for ordinary women and men alike (men form nearly half of all domestic violence victims). Domestic violence of course can be terrorizing, life-altering, and even deadly, often involving repeated episodes of financial manipulation, verbal abuse, sexual assault and/or chronic sexual deprivation, general emotional manipulation and subjugation, and physical abuse ranging from pushing and biting to choking, punching, kicking, stabbing, or worse.

Domestic violence is especially concerning when the victims of such abuse are young parents in terrible marriages, as the abuse not only endangers the parent but also the child. The victim is often intentionally made to feel isolated, belittled, and utterly dependent on the abusers, often giving rise to a type of post-traumatic stress disorder known as Battered Person’s Syndrome or Battered Woman's Syndrome. At least half of domestic violence instances are not reported by victims, and too many of such reported cases are not prosecuted by the local District Attorney for a variety of reasons including an uncooperative witness, insufficient evidence, or police's failure to properly investigate.

Although victims do make phone calls to the police seeking refuge from their abusers, they then often change their minds, recant any allegations made to the police, and refuse to cooperate as a witness against their partners, thinking that they want to protect their abusers from criminal consequences and/ or that they want to safeguard the marriage and the children because the victim might sense no real option in the world for them outside of the marriage. There may be additional family pressure to stay married for religious, financial, cultural, or other reasons. Finally when the abuse becomes too much, the victim might seek refuge in the home of a family member or friend, sometimes taking the children of the marriage with them.

It is in such times that victims often reach out to divorce and child custody attorneys, and I have received so many such calls over the years. There are multiple serious problems confronting victims in such divorce and custody cases including allegations of abduction, continued threats of domestic violence, financial hardship, and even deep personal regret - as odd as that may sound.

To overcome such hurdles, it is crucial to immediately file in Court requests for a divorce, a restraining order, spousal support, child support, attorney's fees, and community property orders to preserve one’s related rights in divorce litigation, to empower the victim, and to educate the court about the context of domestic violence, particularly in the face of the abuser’s imminent allegations of child abduction or efforts by the abuser to paint the marital circumstances in a false light.

One of the most persistent challenges that victims face in such litigation, however, pertains to the victim’s ability to finance high quality attorney representation. When there are limited personal savings and no family members or friends from whom the victim can borrow money to pay for an attorney’s retainer, there are few remaining options. Courts in many states provide self-help information on their websites for unrepresented parties entering divorce litigation. Such online resources can be quite confusing or insufficient to help unrepresented parties in complicated divorces involving children and domestic violence, nevermind complex marital property issues.

In such cases, limited scope representation may be a good alternative for low-income unrepresented parties if they cannot afford full scope representation and are themselves capable of handling a portion of their divorce case. One of the most important times to have the aid of an attorney is in filing an initial request for attorney’s fees. Some state laws permit a spouse to receive an advance payment towards attorney’s fees from the opposing spouse where that spouse has a substantially higher income and can afford to pay for both spouses to have attorney representation. Such laws seek to balance the power between opposing parties in divorce cases to help further the cause of justice in court.

Whether a party is well-represented by counsel or sadly remains unrepresented, in divorce or child custody cases involving domestic abuse, it is key to immediately gather as much written evidence as possible, including police reports, photos of abuse, abuse-related medical and psychotherapy reports, abuse-related text or email communications, witness statements, informal or formal property agreements, written inventory and accounting of all assets and debts belonging to both parties in the marriage, and all relevant child-care and special needs documentation. In divorce and custody litigation, there is often a real need for expert witnesses including doctors, therapists, and accounting professionals. Thus, relationships between the victim and such professionals should be established as quickly as possible in order to generate the necessary history, reports, and evidence that may be used in related hearings and trial. Often psychotherapy is a necessary step for abuse victims and their children, and it’s important to immediately start such sessions in response to instances of domestic abuse.

The number of court filings can be prodigious in even simple divorce cases, but this is even more the case when there are substantial assets and debts at issue (e.g., real estate, a business, valuable cars and jewelry, or even a sizable quantity of personal property and related debts). Child custody, domestic violence, alimony, and child support issues seem to exponentially amplify the scope of litigation, nevermind the 'horror divorce' that can result when you’re dealing with an abusive, vengeful, or irrational ex-spouse or a defective opposing attorney. With even the great array of self-help forms and information available online, the task of litigating such cases can be not only daunting but virtually insurmountable when the facts of the divorce or custody dispute involve the emotionally taxing element of domestic violence.

Often compounding such issues are the concomitant elements of substance abuse or mental illness. Such matters must be properly handled in divorce and child custody litigation via appropriate formal requests for mandatory therapy and rehabilitation with proof of success tied to custody rights. Implicit in all this of course is the fact that the emotional damage that an abusive relationship can cause is often carried over into what can become the warfare of divorce.

It cannot be underscored enough how important it is to have an attorney who is dedicated to reducing the toxicity of divorce litigation through proper guidance and legal advice, amicably resolving the dispute through negotiations and mediation whenever possible, and aggressively litigating against parties and their counsel when faced with factually-dispossessed egotism, stonewalling, and belligerence. Sadly, this latter aspect is too common a feature of divorce litigation, but with good counsel, therapeutic support, and even self-help resources in reach, the day can be won! The most important thing is to get started, for the longer a person stays in an abusive relationship, the more dire the results.