Family Violence in Divorce Cases – What Are the Risks and Consequences? March 16, 2015
This article will review:
- What is family violence
- How it impacts spousal maintenance
- How it impacts custody
- Family violence can be the basis of fault in a divorce
- Family violence can cause unequal division of the estate
- Who can apply for protective orders
Family Violence Generally
First, what is family violence? Family violence is an act by a member of a household against another family member or member of the household. It can be physical or sexual violence. And the legal definition includes threats of physical or sexual violence, and violence in the context of a dating relationship.
The Significance of Family Violence Findings
When a finding of family violence is made, then, if you are a spouse, you may be eligible for spousal maintenance, also called spousal support. A conviction or deferred adjudication for a criminal offense that is defined as family violence must have occurred within the last two years or in the course of the divorce proceedings. The spousal support will be paid for a period of time based on the length of time that the marriage existed, which will be not longer than five years, unless the marriage was for more than twenty years or special circumstances exist.
Family Violence and Custody
Under the family code a presumption exists that it is in the best interest of the children for both parents to manage the children. Presumptions are essentially a court’s way of saying what things the court considers most likely to be true, unless proven otherwise. That presumption is removed upon a finding of family violence, and one parent may be awarded sole management of the children. If credible evidence of a history or pattern of abuse by one parent against the other parent or the children is presented, and the abuse occurred in the last two years, then the court may not allow that parent access to the child unless:
- The court finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare
- The court renders an order designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent
This order by the court may include provisions that:
- Mandate supervision by an entity or person chosen by the court during periods of interaction with the child
- Mandate the location of the exchange of possession (like police station, or other protected area)
- Mandate abstinence from alcohol or other controlled substances for 12 hours before and during access to the child
- Mandate that the parent attend and complete a battering intervention and prevention program or some form of counseling
Sole managing conservator status means you have rights that the other parents does not. Sole management entails the right to determine where the children live, the right to receive child support payments, the right to approve medical treatment, and several other rights that are exclusive to the sole manager. If you are not the sole managing conservator you will have less rights concerning your child. In any situation involving children, the court is led by what is in the best interest of the children. Family violence almost certainly makes the one committing the violence look like a bad option to the court.
“Cruelty” In a Divorce
With a finding of family violence, “cruelty” may be found to be the reason for the divorce. Cruelty is a fault-based reason, so the court would find one of the parties to be at fault if cruelty was found. Under Texas law, a court makes a “just and right” equitable division of the estate in a divorce proceeding. Equitable doesn’t mean equal, it means what is fair considering the conduct and fault of the parties, as well as other factors. Case law supports the unequal division of the estate upon a finding of fault in a divorce.
Anyone within a household may apply for a protective order for themselves or someone else in the household. And any adult (even not within the household) may apply for a protective order on behalf of a child. Whether you have been accused, or have filed for a protective order, it is important to understand the full scope of the impact of such orders. We’ll cover protective order and what the different orders mean and look like in a future article.
Divorce and child custody cases are complicated and high-risk. The stakes become much higher in this cases when there is family violence or allegations of family violence. If you find yourself in this situation, call the attorneys you can trust to protect you and your family. We practice in Denton County, Dallas County, Tarrant County, Collin County, Cooke County and Wise County. Our Denton location is:
Hayes, Berry, White & Vanzant, LLP
512 W. Hickory Street, Suite 100
Denton, Texas 76201
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