It’s important to address the issue of domestic violence and its impact on divorce. Divorce may trigger domestic violence or be the outcome of domestic violence. In either scenario, the process of divorce becomes even more daunting when domestic violence is involved.

What is domestic violence?

Domestic violence comes in many forms. The National Coalition for Domestic Violence defines it as “the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, psychological violence, and emotional abuse.” Less obvious examples of domestic violence are restrictions of freedom, isolation, and coercive control of money. Situational domestic violence refers to domestic violence that is part of an isolated occurrence rather than an ongoing pattern of abuse. Texas Family Code § 71.004 defines family violence as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect one-self.”

Difference between fault and no-fault divorce:

The State of Texas recognizes both fault and no-fault grounds for divorce. A no-fault ground for divorce is when a spouse files for divorce due to irreconcilable differences. In simple terms, a spouse does not want to be married to the other person for whatever reason. On the other hand, a fault divorce ground is when one spouse alleges that the other spouse is to blame for the divorce. In Texas, these fault grounds include adultery, felony conviction, cruelty (abuse), mental incapacity, three years of living apart, and abandonment.

What is the effect of domestic violence on divorce?

If a spouse files for divorce alleging a fault ground because of abuse, the court may consider this when it comes to property division, child possession, and spousal maintenance.

1. Property division:

Marital property is typically divided based on equitable distribution principles. Equitable distribution does not mean “equal” division of property; but rather a “fair” division of marital property. If a spouse asserts abuse as a ground for divorce and shows evidence of abuse, a judge may divide the property in a disproportionate manner.

2. Managing Conservatorship:

Under Texas law, there is a presumption that both parents should be appointed joint managing           conservators upon dissolution of marriage. In other words, both parents have comparable rights of the child and comparable time with the child. However, if the court finds that there is a history of domestic violence that poses harm to the child’s physical and emotional development, the court has the power to deny custody to the perpetrator of domestic violence and can place significant limits on that parent’s access to or possession of the child.

3. Spousal Maintenance:

In Texas, a judge may award spousal maintenance. Domestic violence can be a factor the judge           considers in awarding spousal maintenance. Family Code §8.051 states that in a divorce proceeding, a spouse is eligible for spousal maintenance if s/he can prove that the other spouse was convicted of or received deferred adjudication for a criminal offense that constitutes family violence.