Spousal abuse or child abuse can have a significant effect on a divorce and child custody or visitation issues. The most profound effect, however, is on the emotional aspects of the processes. Health and safety concerns are at the forefront of the proceedings, even more so than the average case. Domestic abuse can affect the outcome of both your divorce and any custody disputes.
Domestic violence encompasses assault, sexual abuse, stalking, battery, kidnapping, or any other criminal offense that occurs between family members. Even if the couple no longer lives together, the violence between them can still be considered domestic abuse.
Getting Court Protection from Abuse
If you are being abused or threatened with physical violence, you can get help from the court to get your spouse away from you. You can ask the court to enter an order called a “Protection from Abuse” order. This order will prevent your partner from coming into contact with you and sometimes your children as well. If the order is violated, your spouse may be criminally prosecuted. You may also be able to get an Injunction for Protection Against Domestic Violence as well.
Keep in mind that just because you have a Protection from Abuse order does not mean that your spouse will adhere to it. Take steps to keep you and your family safe, and call 911 if you are in danger.
Domestic Abuse and Divorce in Florida
Technically, Florida does not consider fault in divorce. That is, no one is required to be “at fault” for the court to grant a divorce. The only requirement to obtain a divorce in Florida is to show the court that the spouses have irreconcilable differences and that at least one spouse wants a divorce. In addition, at least one spouse must have been a Florida resident for at least six months to meet the jurisdictional requirements to file for divorce.
However, while fault will not impact whether you can get a divorce, it will affect property distribution and determinations of parental responsibility. Property division is based on the concept of “equitable distribution.” This distribution scheme does not necessarily mean that debt and assets will be divided equally, but it will be split in a way that is as fair as possible based on the circumstances of the case.
In making property distribution decisions, the court can consider whether there is any history of abuse between the spouses or toward the children. They will also consider adultery as well. The abusive spouse can, and often does, get less in the property distribution because of their actions during the divorce.
Child Custody and Abuse
The court makes custody decisions based on the assumption that both parents should have custody because that is in the best interests of the child. Most children tend to do better from both an emotional and cognitive standpoint when both parents are involved in their upbringing.
However, when one parent is abusive, that assumption does not apply. In fact, if one spouse has been convicted of domestic violence, then the court assumes that it would be detrimental to the child to allow that parent to have custody. In addition, if there is a conviction, visitation will also not be awarded as well. If there is no conviction, evidence of domestic abuse will be reviewed and considered in making these determinations.
If you have questions about domestic violence and how it will affect your family law issue, contact our firm. We can also help you get the help you need.