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How Does Family Violence Affect My Divorce?

In Texas, family violence can have an impact on various aspects of a divorce, including child custody, property division, and even spousal support. Family violence, also known as domestic violence, includes actions like physical abuse, emotional abuse, sexual abuse, and financial abuse.

If you are thinking of getting a divorce, below are some effects on your divorce matter if there is family violence:

  • Child Custody and Visitation: Family violence is a significant factor in child custody determinations in Texas. Courts prioritize the safety and well-being of the children involved. If you have a history of family violence, it might influence the court's decision regarding conservatorship (custody) and visitation. The court's primary concern will be the best interests of the child, and a history of violence could impact your ability to gain custody or unsupervised visitation. You can find out more about family violence and child custody here.
  • Emergency Orders: When filing for a divorce, you may ask for some temporary orders to be issued with or without a hearing. Usually the temporary restraining order which can be signed without a hearing lasts 14 days from the time of signing. Though every divorce typically has a temporary restraining order which is joint and mutual, if there is family violence, you may request the court in this document to issue emergency relief such as giving you the exclusive use of the marital residence or excluding your spouse from your children. To do this, you will need an affidavit detailing the family violence and the need for emergency orders.
  • Waiver of the Waiting Period: In the Texas Family Code, you must wait 60 days from the filing of a divorce to finalize the divorce. However, if there is family violence, you may get this waiting period waived by the court so you can expedite your divorce.
  • Property Division: Texas is a community property state, which generally means that marital property is divided in a way that is “just and right.” It is up to the Court to decide what constitutes a just and right division. If there is family violence, courts can consider that in awarding the spouse committing the violence less of the community estate.
  • Spousal Maintenance: Family violence might also impact spousal maintenance (alimony) determinations. Under the Texas Family Code, spouses must meet certain requirements for a court to issue spousal maintenance. Section 8.051 of the Texas Family Code states that a spouse who lacks sufficient property on the dissolution of the marriage to provide for their minimum reasonable needs may request spousal support if their partner has been convicted or received deferred adjudication for a criminal offense that also constitutes as an act of “family violence.” The act of violence must have been:
    • Committed during the marriage against the spouse or the spouse’s child and
    • Either within two years before the divorce case was filed or while the case is pending.
  • Bonus Issue - Protective Orders: If there is a history of family violence, you can ask the court to issue a protective order before or during the divorce to ensure your and your children’s safety. These orders can limit contact between the parties, including communication and physical proximity. Getting a protective order before or soon after a divorce will help protect you while the divorce is pending and allow you to use some of the above options.

If there's a history of family violence, it's important to properly document incidents and gather evidence. This could include police reports, medical records, photographs, witness statements, and any other relevant documentation. These records might be used to support your case and help establish the need for protective measures.

It's crucial to work with an experienced family law attorney who can guide you through the legal process, help you understand your rights, and advocate for your best interests. Family violence can have complex legal implications, and an attorney can help you navigate these issues while ensuring the safety and well-being of you and your children.