Understanding Domestic Violence and Its Legal Implications in Divorce
Domestic violence is a scourge in our society. Sadly, it is often the elephant in the room that is seldom talked about. According to the Safe Family Justice Center, “Under California law, domestic violence is defined as abuse committed against a spouse, former spouse, cohabitant, a person with whom the perpetrator has a child, a person the perpetrator is dating or has dated, or a person with whom the perpetrator has had or has a sexual relationship. Domestic violence can take many forms, and it is not limited to physical violence. It can involve emotional or psychological abuse, sexual abuse, economic abuse, or any other abuse that puts the victim in fear of harm.”
The California Family Code provides examples of domestic violence, which include:
Intentionally injuring or attempting to injure someone,
Sexual assault,
Stalking,
Harassing,
Threatening,
Intimidation,
Destroying someone’s personal property, and
Disturbing a person’s peace, which refers to conduct that destroys their mental or emotional calm, including coercive control.
A perpetrator need not inflict physical harm or cause injury for it to be considered abuse.
Unfortunately, domestic violence happens all too frequently. In the United States, it is estimated that 10 million people every year are victims of abuse, with as many as one in four women and one in nine men suffering at the hands of an intimate partner. In a Business Insider survey, 23.5 percent of participants indicated physical and emotional abuse in their marriages was a significant contributor to their divorce. Frighteningly, the National Domestic Hotline reports that nearly 50 percent of all women and men in the United States have experienced psychological aggression by an intimate partner during their lifetime.
The Importance of Documenting Domestic Abuse
Family court takes domestic abuse very seriously. The judge can issue a protective order restricting one spouse from interacting with the other. Not only should the victim/protectee’s lawyer keep a copy of the Order, but the court Order should also be taken to the police station(s) nearest where the protectee lives. A copy should always be kept with the protectee – in one’s car, home, office, briefcase, wallet/purse, etc. – in case they need help from the authorities.
The attorney will want to know all the details of the abuse to build the most robust case in the upcoming divorce proceeding. These details should include when and where the abuse happened, whether there were any witnesses, whether the victim fled the house with the kids, and whether they went to the hospital or to see their physician. The attorney will also want to know if one or both parties were seeing a therapist who could confirm the abuse allegations were discussed.
Introducing testimony from a therapist can be tricky. First, the patient must waive the therapist's confidentiality privilege. If it is a joint therapist, both parties would have to waive the privilege, which might be unlikely. The risk of having a therapist testify is that now everything is fair game, leaving opposing counsel with an opportunity to ask probing questions about the therapy sessions that could be harmful to the case.
The most important thing is to provide your attorney with as much information as possible. These details should go back five years but can include earlier incidents, showing an ongoing pattern. When the court finds domestic violence, it raises a rebuttal presumption that the perpetrator cannot have joint or sole legal or physical custody. When domestic violence is proven in court, spousal support and the assessment of fees can be impacted.
Unfortunately, all too often, many victims of domestic violence do not report what is happening to law enforcement or medical professionals. For some, they are either embarrassed or emotionally conflicted about the consequences of reporting the abuse. They may be fearful about what will happen to the children or themselves. These fears are especially real if the abuser is the breadwinner and could lose his or her job, taking with it the family income and healthcare.
How Accusations of Domestic Violence and Substance Abuse Affect Custody Evaluation
As previously mentioned, a court finding of domestic violence may impact custody. Another factor the court will take into consideration when evaluating custody is substance abuse by a parent. Even if the person is now clean and sober, the court may require passing a breathalyzer test before visitation, or that visitation be monitored to ensure the safety of the child(ren).
For those who own up to having a substance abuse problem, the best thing they can do is demonstrate to the court that they are taking their addiction seriously and are willing to take the hard steps to recovery. Enrolling in treatment and support programs, having a sponsor, and voluntarily taking drug/alcohol tests will demonstrate they are taking it seriously.
As someone who has personally been through a marriage with an alcoholic spouse, I have enormous empathy for the challenges faced by my clients. For anyone in such circumstances, I recommend finding a divorce attorney who has empathy and experience dealing with an alcoholic or any other substance abuse situation because it is unique and runs contrary to intuition. The right attorney will guide their client through the complex legal process, helping craft a game plan that protects the children and the spouse first and foremost. Educating the court and selecting doctors and witnesses to support the case will be crucial.
The Crucial Role of Friends and Family
Beyond the ins and outs of the divorce process, the spouse of an abusive, alcoholic, or drug-addicted person needs to begin to focus on helping themselves. From my years of experience dealing with these types of cases, I have developed what I call the 2+1 Intervention Method™ for securing objective help to have an intervention on oneself (versus the person with an addiction).
My approach calls for the spouse of an alcoholic or substance abuser to give their partner one or two chances, maximum, to secure professional help and choose a path of recovery. However, once those two chances have failed and the person with an addiction falls back to their dangerous ways, the spouse’s friends and family should sit the non-addict down and hold an intervention. This intervention should take place in a private meeting far away from the addict. In true group therapy fashion, the attendees should be honest about what they are seeing and experiencing in this dysfunctional marriage.
This process does not neglect the addict but instead focuses equal energy on the non-addict, analyzing what is happening in the marriage and helping them see that the addict is either incapable of or unwilling to help themselves. The result may aptly include extricating themselves and their children safely from a dangerous living situation.
Such a “plus-one intervention” process should begin with a visit to a therapist—preferably one who is an addiction specialist. This addiction specialist can help assess and document the spouse’s role and responsibilities in the recovery process. They should also help the spouse track their progress and that of the family through active intervention and beyond to safety.
Following these steps will be crucial on the path to a healthier tomorrow.
If you or someone you know is experiencing domestic violence in any form, speak with someone today. The National Domestic Violence Hotline is 1-800-799-7233, or text the word BEGIN to 88788.
Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.