If you’ve been the victim of domestic violence, you know how traumatic it is. No one should endure that kind of pain, both mental and physical. Domestic violence should be handled in a criminal court, but it can also affect the outcome of a divorce.
First off, it should be noted that there is a legal difference between violence and abuse. Violence involves the direct, physical harming of another person. In criminal justice, this often falls under the categories of “assault” and/or “battery.” When someone in your family or household punches, kicks, or uses an object to harm you, they are guilty of domestic violence.
“Abuse” is a bit murkier, legally speaking. Criminal courts have few references to “abuse.” Abusive behavior includes stalking, threatening, screaming, cutting off someone’s contact with others, imprisoning someone in their home, etc. There are no catch-all laws dealing with abuse. These behaviors tend to be handled individually. For example, there are specific laws pertaining to stalking, imprisoning, and the like. Fortunately, when it comes to a divorce, violence and abuse are handled the same way.
When courts believe a spouse was the victim of violence or abuse, there are many potential consequences for the abuser.
Property Division
New York is an equitable division state. This means that, in a divorce, judges divide property by what they consider fairest, not by an equal, 50/50 split. In most situations, courts look at income, quality of life, standard of living, and other similar factors when dividing property.
However, in a marriage where one party was abused, judges can sometimes consider that abuse when they divide property. A judge can award more money to the victim of abuse, similar to the way a personal injury case can compensate someone for their “pain and suffering.” When considering what is fairest, courts may believe that an abuse victim deserves more than just their basic needs met.
The same principle works in support determinations. As the victim of abuse, you may receive a greater amount of spousal support in a divorce settlement. Similarly, the children may receive a larger amount of child support if they were victims of or witnesses to abuse.
Child Custody
When it comes to children, courts are obligated to make decisions that are in the “best interest” of the child. If you can prove to a judge that the child was in an abusive, dangerous environment, you will likely be granted custody.
It is important to remember, however, that judges can consider many other factors. For example, if the children were never directly exposed to the abuse, a judge may see your spouse as no threat to the kids. In that case, your spouse could have greater access to the children than someone who abused them.
Orders of Protection
Orders of Protection are often called “restraining orders,” and many states refer to them as “protective orders.” They are court orders that demand someone stays away from you. They can also put restrictions on someone’s behavior.
There are three separate orders of protection in New York:
- Criminal Order of Protections
- Supreme Court Order of Protection
- Family Order of Protection
If you are the victim of domestic abuse, you will most likely use a Family Order of Protection to keep your abuser at bay. There are also protections in a Supreme Court order that can apply in a divorce.
New York orders offer two separate layers of protection. You can file for a limited protective order, which means that the abuser can still contact you. They cannot, however, threaten, abuse, or harass you. These actions are already illegal, but with an order of protection, justice against the abuser can be far swifter. A limited protective order is helpful when you need, for whatever reason, to still be able to speak to the abuser.
The next layer of protection comes from a full protective order. This cuts off all contact with your abuser. They cannot approach you, your home, your place of work, your school, or any other such place. Also, like a limited order, they cannot threaten, abuse, or harass you. These orders are helpful when you believe your abuser is a continued, imminent threat to you and your family.
There are two durations for a protective order in New York, temporary and final. Temporary restraining orders are immediate. They are for people who believe they are in immediate danger from their abuser. These orders can be filed and issued on the same day. The abuser does not need to be present when these orders are issued. If a judge believes your story, they can create the order, and your abuser will be notified by the authorities. Temporary protective orders last until the next court date, where they can be renewed. In a divorce, you can continue to renew these orders until your divorce is finalized.
A final protective order can be issued as part of the divorce settlement. This gives the alleged abuser a chance to defend themselves. Their legal team can produce evidence and call witnesses to counter abuse allegations. Final orders of protection last between two to five years. They can be extended if the abuser breaks the terms of the order or if the victim still believes they under threat. For the latter, the alleged abuser may have the opportunity to defend themselves once again in court.
If you need a divorce from an abuser, give contact us today. We may be able to help you secure an order of protection and continue with the divorce safely. For help, call (914) 312-4131, or contact us online.
