Divorcing from an Abusive Spouse: What You Need to Know
Behind closed doors, or hidden beneath a blanket of silence, domestic violence bruises the lives of an estimated four million people every year – the overwhelming majority of them women– and impacts expanding circles of millions more: children, relatives, friends, employers. Janet* had been married for almost 50 years. And for most of that time, she had been abused by her husband. For Terri, attempts to reach a separation agreement with her husband ended in a fit of rage; he attacked her when the discussion turned to dividing his retirement benefits. Joseph got as far as drafting a separation agreement and domestic violence consent order before he reconciled with his abusive wife – an event that did nothing to stop the abuse. Studies show that violence occurs at least once in two-thirds of all marriages, and approximately 95% of the victims of domestic violence are women. Roughly 40% of all physically abused children have also witnessed physical violence between their parents. Many children who are abused, or who witness abuse of a parent, grow up to become abusive themselves, or become victims in violent relationships. And the cycle continues. Fortunately, there’s something you can do about it. According to Lisa Angel – an attorney, Board-Certified Family Law Specialist and member of the Governor’s Domestic Violence Commission – special laws in North Carolina are designed to provide quick and effective relief from domestic violence. “The most important thing a victim of this kind of abuse can do,” she emphasizes, “is find the courage to take action.”
Don’t become a deadly statistic.
Some people feel as if they just can’t handle dealing with the legal system on top of the abuse they’ve suffered. Regina, for example, found the courage to move with her children – one of whom has also been abused – into a new apartment. At the time, she says, “I didn’t think I could face the trauma of taking a domestic violence case to court.” Her husband’s response? He tracked her down at her new home and hit her again. That was the unfortunate wake-up call she needed to act.
If your spouse is violent, take immediate action.
Angel – a past president of the Women’s Center of Wake County Board of Directors and founding board member of Project Together, a domestic violence pro bono project – is particularly clear on this point: “Call the police if necessary. When you’re safe, contact the domestic violence relief agency in your county. They can give you advice and direct you to a safe shelter.”
If you fear for your safety, leave the house; otherwise, talk to a lawyer first.
As Regina found out, violence can be an ongoing threat, wherever you are. Which is why, according to Angel, “I can’t stress this enough: If your spouse is violent, you must take all steps necessary to protect your safety and the safety of your children. Only after you’re safe is it time to focus on legal issues.” In general, she says, you can leave the house and not come back, and you may take the children with you, unless a court order directs you otherwise. However, she points out that – if circumstances allow – it may not be wise to leave the house without talking to an attorney. “Leaving the house without what a court considers a good reason may affect your alimony situation, and if you leave the house you may not be able to come back until a court divides the property.” This process will take a long time, and you may not end up with possession of the house after the property has been divided. The best advice? According to Angel: “Stay in the house until after you discuss the matter with a lawyer, unless your spouse is violent. As Regina’s case illustrates, victims of abuse don’t always have the ability to make this choice – sometimes getting out is the only safe option.”
If warranted, file criminal charges.
North Carolina law should be on your side, says Angel. “If you are attacked, there are several crimes your abuser can be charged with, for starters: Rape and Sexual Offense, Assault, Domestic Criminal Trespass, Communicating Threats, Stalking or Harassing Phone Calls.” Again, she recommends contacting the police as soon as possible.
Use the civil courts to your advantage.
The civil code can also provide some relief. “In many cases,” says Angel, “it’s possible to get a court order without the typical notice requirements, so you can keep possession of the house and car, and temporary custody of your children; the order may also provide that your spouse must stay away from you and the children. And if your spouse violates such an order, he or she will be arrested.” In the case of Tamiqua, repairing her life included both civil and criminal remedies: a domestic violence consent order, separation agreement, and involvement of the district attorney – after her husband fired a gun at her while their children slept upstairs. For Angel, this illustrates an important point. “From a legal perspective, it’s not an either/or choice – you should use whatever tools are necessary to protect yourself and your children.”
Prepare a complete complaint.
A domestic violence complaint should list all the facts, and not simply state the result of the violence. Terri, who we met earlier, was able to present a very compelling picture of her situation simply by highlighting her recent interactions with her husband. As she succinctly puts it, “I was willing to negotiate; he got hung up on the money stuff, and then he went nuts again.” Angel says that the facts you present are most compelling to the court when the acts occurred recently or over a period of time, and when they’re as specific as possible.
Understand the Domestic Violence Act.
In 1979, North Carolina responded to the problem of domestic violence by enacting Chapter 50B, the Domestic Violence Act. Angel has dealt with the ins and outs of this legislation for many years. “The Act has been amended and refined over the years and, while not perfect, it has a number of good attributes. It protects men, women and children, and it provides a fast method for separating a spouse from his or her abuser.” Under the Act, domestic violence is defined as attempts to cause or intentionally causing bodily injury, and placing a person in fear of ‘imminent serious bodily injury’ by threatening the use of force. “The statute protects not only present spouses but also former spouses and people in a dating relationship – so you don’t have to be currently married to be protected.” A dating relationship, for these purposes, involves romantic involvement over time and on a continuous basis.
When it comes to filing a complaint, you can “do it yourself.”
Do-it-yourself complaint forms are available through the Clerk of Superior Court. “However,” Angel cautions, “these forms should not be used if custody, child support or alimony are at issue, because they don’t allow for solid claims to be made in those areas.” Attorneys can also use these forms, or they can write up custom-tailored complaints. “It’s the kind of thing,” according to Angel, “that might be great in some situations, and in others it might just be confusing. Not everyone wants or needs to handle their own legal paperwork, even in the best of circumstances.” Pamela was certainly not facing the best of circumstances when she thought about going the do-it-yourself route. “I was tired – physically, emotionally. More like in shock. So even when some very well-meaning friends tried to get me to do this, I just couldn’t. I had been a victim for so long, I really didn’t think I had the strength to do this on my own.” It took a professional who could walk her through the process, and do, in her words, the “heavy lifting,” for Pamela to file a complaint.
Find the right solution.
This reinforces a central message that Angel wants to get across. “There’s no one right answer for all victims.” And this extends into the courtroom. “Whether you have a restraining order against your abuser or some other type of court order, the Domestic Violence Act allows judges to approve a range of protections.” These include: • Giving you possession of the home and excluding the other party from the household • Evicting your spouse and assisting you in returning to your home • Requiring your spouse to provide alternate housing • Ordering support payments for you and/or your children • Determining possession of personal property • Granting temporary child custody • Issuing orders to refrain from violence or harassment • A catchall provision which allows the court to ‘grant any protective order or approve any consent agreement to bring about a cessation of acts of domestic violence.’ Angel adds that “all of these remedies are in addition to protections that you might be entitled to under other law. Plus, the language in the act is intentionally broad, so other types of protections can also be crafted.”
Know what protective orders can and can’t do.
Despite this long list of protections, Angel says that there are several issues to keep in mind. “Protective orders will expire at the end of a fixed period, not more than a year. There are no exceptions to this rule, but you can request renewal for up to another year.” In addition, copies of the order must be issued to each party as well as the police or sheriff’s department in the county where you live – and it’s up to you or your attorney to make sure this gets done. “As much as law enforcement wants or tries to help, some things are beyond their control. The best protective order ever drafted is no good unless there’s some follow-through. We find that victims who try to handle legal things themselves sometimes get to this point and don’t realize there’s more they need to do.”
There is light at the end of the tunnel.
Remember Regina? When she turned to the legal system, she was initially met by resistance from her ex-husband, who refused to settle custody and visitation out of court or agree to a protective order. This forced a trial, where conflicting testimony was given. The court, however, ultimately found in Regina’s favor – issuing a protective order and granting her custody of the children. “It was hard,” she says. “But not harder than what we had been living through.” While, as Angel puts it, “it’s not necessarily going to be a pleasant process,” using the courts can be an effective – in some cases the only – tool for ending abusive relationships. And the bigger picture is this: thousands of people have found the strength to save themselves from domestic violence.
Find someone to lean on.
Speaking from her lengthy professional experience, Angel says that “emotional support can be absolutely essential to everyone involved in the breakup of a violent marriage.” Mental health providers – including psychologists, psychiatrists, clinical social workers and other counselors – can be found in private practice, at nonprofits or in government agencies. Many agencies will provide counseling at a fee based upon your income.
For detailed information about domestic violence laws in North Carolina, Angel recommends visiting the domestic violence FAQ section at NCdivorce.com, or read the NCBA publication on Family Violence available at www.ncbar.org. The Rosen Law Firm sponsors monthly seminars which address the multitude of issues found in most domestic violence situations; for more information, please visit our seminar schedule.