Filing for Divorce as a Victim of Domestic Violence
October 10th, 2018
Simmons and Fletcher, P.C. is proud to feature this guest post from Houston family law attorney, Bryan Fagan. Bryan is not affiliated with Simmons and Fletcher, P.C. but has granted us permission to share his knowledge of another area of law with our clients via this guest blog post:
Filing for divorce as a victim of domestic violence
Being in a position where you have been abused by your spouse is a place where it is easy to feel helpless. For starters, the one person in the world whom you would expect to protect you rather than abuse you has broken your trust. Secondly, you may be pondering whether or not you can even afford to protect yourself and your children at this stage. This is especially true if you are a stay at home parent while your abusive spouse works and controls the money in your family. What are your options and how can you proceed?
Fortunately there are protections afforded to you under the law as well as shelters and other safe places that you can seek refuge in if you do not have a support system in place. With that said, you have to be able to take advantage of the rights that you do have by speaking up for yourself and taking action. Today’s blog post from the Law Office of Bryan Fagan will detail those steps that you can take by walking you through a divorce that involves domestic violence.
However you feel, know that you are not alone in this
You may feel like you are the only person in the world who is dealing with difficult times like you are. Certainly this is understandable given the fear, intimidation and abuse that has gone on in your home. However, I would like to let you know that you are not alone in actuality and there are options available to you to take to protect yourself and begin the process of filing for divorce if that is what you choose to do, ultimately.
While nothing in the law provides for overnight results as far as a divorce is concerned, a divorce will be forthcoming if you ask the court for one. Along the way the law favors people in your position by affording you immediate protection and often times putting you in a position where you are able to come out ahead in terms of the rights you have to your child and the share of your community estate that you are able to keep after the divorce.
The bottom line is that you are not alone, you have resources available to help you in our State and there are people that will work with you to make sure you are safe and to assist you in achieving whatever goals you have for your divorce.
How to go about filing for divorce
The general rule in Texas is that if you want a divorce you can get one. The divorce can be based on no reason at all or a significant reason. I always tell clients you can divorce your spouse because you don’t like the way he or she chews their meatloaf or because of something extremely serious- like domestic violence.
Domestic violence is a specific grounds for divorce that you can cite in your Original Petition for Divorce. To prove that your spouse has engaged in domestic violence against you it would be necessary for you to show the court evidence such as medical records, photographs of injuries, police reports that you have filed or things of that nature. Your attorney is in a position where he or she can assist you in locating this information.
Informing and notifying your spouse that you have filed for divorce
When you get into a position where you and your children are safe you can start to consider when and how you want to file for divorce. Again, a family law attorney who has experience in representing clients who have been the victim of domestic violence are well positioned to be able to help you begin this process. Deciding to file for divorce from your spouse is a big step, especially if you have been the victim of domestic violence. You should not underestimate the reaction of your spouse when he or she is served with divorce papers by a constable or process server. For this reason it is recommended that you already be in a safe place when this occurs, preferably one that your spouse does not know the location of.
The benefit of having an attorney in this situation is that you do not need to ever speak or interact with your spouse. Your attorney will be doing that for you. Once your spouse hires an attorney then the lawyers will communicate with one another on your behalves. It is my experience that while nothing gets better immediately, once the lawyers get involved there is a cooling off period that occurs where your spouse and you are able to see more clearly and work towards a resolution in your divorce. I’m not so sure that this would happen as regularly if it were up to you and your spouse to work your issues out one on one.
Temporary Restraining Orders and Protective Orders
As I mentioned at the outset of today’s blog post there are protective measures that can go into place for you and your family after you have filed for divorce from your spouse. You will want to ensure the safety of not only your children and yourself but your family as well and anyone living in your household. Protective Orders can be sought independently from your divorce case. A Temporary Restraining Order can be sought directly from the family court judge who is overseeing your case. This restraining order will be lifted after a period of 14 or 28 days once you and your spouse have had an opportunity to either settle upon temporary orders or to attend a contested hearing and have temporary orders awarded by a judge.
How long do you need to wait for a divorce in Texas?
Once you have filed your Original Petition for Divorce there is a sixty day waiting period that takes place before you can actually be divorced officially by the judge. This sixty day waiting period is designed to give you and your spouse plenty of time to decide whether or not you would actually like to get the divorce.
Your attorney can, however, file a motion with the judge to waive this sixty day waiting period due to family violence having been a factor in your divorce. Your spouse must have been convicted on a charge related to family violence. You or anyone in the household could be the victim in that convicted incident.
A word (or two) on child custody
Finally, a domestic violence charge and/or conviction will work in your favor in terms of child custody. The presumption in Texas is that both parents should be named joint managing conservators of their children in a divorce. This means that the rights and duties each hold as to their children will be virtually equal. However, domestic violence rebuts that presumption and causes you to be in a position where you are likely to become the sole managing conservator of your children. You would hold the majority of the rights and duties for your child while your spouse would have limited rights to make decisions on their behalf and to receive information about your children from school or medical providers.
When it comes to visitation and possession of your children, it is probable that your spouse would only be awarded supervised visitation (at best). This is because a judge would need to make a determination that it would be in your children’s best interests to have contact with your spouse. If the violence occurred recently he or she may not even get supervised visitation until an extended period of time has passed.
Questions on domestic violence and divorce? Contact the Law Office of Bryan Fagan today
If you have any questions about how a divorce would work in conjunction with allegations/charges/convictions regarding domestic abuse please contact the Law Office of Bryan Fagan. We offer free of charge consultations where your questions can be answered and concerns addressed. We take pride in representing the people in our community. Thank you for your time in reading today’s blog post.
About the Author:
Bryan, a graduate from South Texas College of Law, advises clients on all aspects of family law: divorce, adoption, paternity, custody, child support, mediation, and many other family law issues. Throughout his legal career, he has represented numerous family law clients in divorce, custody, and property disputes. He, and his legal team that consists of 10 family law attorneys and 35 staff members, are dedicated advocates and assist clients from beginning to end in a family law case. Bryan may be reached at: 281-810-9760.