Walking away from an unhealthy relationship that involves violence is rarely easy or simple. The abusive spouse is unlikely to accept a divorce and may take even more violent action to prevent the other spouse from leaving. Consequently, a lot of planning and secret preparation is often required of the abused spouse to ensure he or she can move out of the abuser’s household safely. Obviously, if children are involved, navigating a safe exit becomes even more important and complicated. With one in three women and one in four men encountering some form of physical violence from an intimate partner, this issue affects tens of thousands of individuals.

The government has a vested interest in keeping its citizens safe and free from the fear of control/harm from a spouse or partner. Victims of domestic violence are known to suffer from serious health issues, and children exposed to this environment are more likely to engage in similar behavior or become victims themselves. The law wants to assist victims and their children achieve a stable home, and offers a number of mechanisms to keep the abusive spouse away in the short- and long-term. A discussion of the legal issues relevant to initiating and proceeding through a divorce case when domestic violence is present will follow below.

What is Domestic Violence?

People generally associate domestic violence with abuse between a spouse or intimate partner. However, the law has a broader definition of when abuse qualifies as domestic violence. Specifically, violence against family and members of a household are also considered forms of domestic violence. Thus, the law seeks to protect not just spouses or intimate partners, but also children and other individuals living in the home, especially those that are vulnerable due to a mental or physical disability.

Staying in the Home

Safety should be the primary concern when dealing with an abusive spouse, which may require vacating the home to escape the threat of future violence. But, if there are children, staying in the home may take a high priority. If so, obtaining a restraining order, called an order for protection in Indiana, is an option that would allow a victim to stay put. Granting the abused spouse exclusive use of the family home, regardless of who has legal rights of ownership, is a standard provision in orders for protection. This right of use means the abuser can be forcibly removed from the residence by law enforcement and prohibited from living in and visiting the premises. If this provision of the order of protection is violated, the individual is subject to arrest.

Child Custody

How much visitation and custody rights a domestic abuser will receive in divorce is a legitimate concern. Courts make all decisions in these matters based on what is in the best interests of the child. Thus, the outcome of each case is fact-specific, but evidence of domestic violence is one factor courts must consider in the decision-making process. In these situations, courts will typically give the abused party primary custody. Deciding whether the non-custodial parent will receive any visitation rights will largely depend on if he or she poses a physical or emotional threat to the child. If so, the court is likely to order supervised visitation, which involves the parent and child meeting in a secure location and interacting in the presence of a neutral third party to reduce the likelihood of dispute. Supervised visitation is almost certain to be imposed if a parent is convicted of a domestic violence offense that occurred in the child’s presence.

Mediation

Finally, an abused spouse may be concerned about how much contact he or she will have with the other party during the divorce proceedings. Participating in mediation is a standard requirement for parties in divorce cases, but before ordering parties to mediation, a court must first decide if mediation is appropriate in a particular case. A history of domestic violence would likely convince a judge that mediation is unsuitable because it would unnecessarily expose the victim and his or her family to threats of violence or intimidation.

Get Legal Advice

If domestic violence is an issue in your divorce, it is essential to hire a family law attorney to ensure you are properly protected from further harm. Attorney Christopher L. Arrington has experience representing clients in all aspects of a divorce case, and is available to help you start the next stage of your life. If you live in the Indianapolis area, contact him today to schedule an appointment.