Divorcing From an Abusive Spouse When you Have a Child Together

Divorce doesn’t happen overnight. This fact will undoubtedly make some grumble, but for those living with abusive spouses it can cause terror and panic. Domestic violence has devastating effects not only on the victim spouse but also on any child involved in such a marriage. These children will experience their own share of devastation even when they are not the target of the violence. As a result, there are some steps that must be taken to protect them from the effects of the abuse and the entire divorce process.

Key Factors to consider when divorcing an abusive spouse

When contemplating divorce from an abusive spouse, the following are some vital steps you should consider in order to remain safe as you end the marriage.

Understand what the law considers Domestic Violence

North Carolina law defines Domestic Violence as acts that include attempts to cause bodily injury, intentionally causing bodily injury, as well as the act of placing a person in fear of “imminent serious bodily injury or continued harassment”… “that inflicts substantial emotional distress.”. The “imminent” requirement refers to threats as opposed to the actual use of violence, meaning this requirement only exists if you are being threatened and not if you have suffered bodily injury at the hands of your spouse before. Acts of self-defense are not domestic violence

If your situation fits the definition of domestic violence and applies to either you or your children, take the following steps immediately.

Consult an Attorney

This is one of the first steps you should take if you’re considering divorce from your abusive spouse. A family attorney will be able to advise you on the right steps to take not only to remain safe but also to build a better divorce case. It is important to meet with someone well versed in domestic violence issues who can give advice specific to your case.

Even if you are unable to afford an attorney to handle your divorce or to seek protection  against your spouse, it is still important to consult a licensed family lawyer to understand the legal ramifications of your situation and how to best support yourself and your children. All divorce cases are different, even amongst domestic violence victims, and as such you will undoubtedly have issues unique to your case that an internet search won’t be able to answer. Hiring an attorney for your case, for a consult, or even for a pro bono case will provide you with the resources you need to stay safe.

Gather Evidence

This is one of the most important steps when it comes to prosecution over domestic violence cases. Your family law attorney will give you tips on how to gather evidence as you plan towards divorce. Things like messages (especially those that threaten your safety), pictures of bruises, and even call recordings are examples of general evidences that can be gathered.

Sadly, failure to report past abuse can hinder a victim of violence. If the abuse is on-going but you have not reported it to the police, this can be seen as evidence to the contrary and can actually hurt your case. If it is safe to do, call the police the next time your spouse commits an act of domestic violence. Even if they are unable to do anything about it in the moment, this evidence will make your case much stronger.

Leave the House

If you believe that you are in imminent danger, you should leave immediately and get in touch with your attorney immediately after. However, if possible, you should discuss moving out of the marital residence with your attorney before doing so in order to avoid any legal complications. You should be aware that leaving the matrimonial homewithout the intention of returning and without “good reason” may affect your alimony if you’re a dependent spouse.  

While there probably isn’t a better reason to leave the house than the safety of you and your children, the courts may have difficulty accepting your plea if there is not enough evidence in place as mentioned earlier, so being strategic about how and when you leave is important. Again, if you believe you or your children are in danger, leave immediately. Otherwise, take the above steps first before taking this one.

In addition, even if your spouse is the other biological parent of your children, you are legally allowed to leave with them unless there’s a court order in place that states otherwise. No child should have to remain in the hands of an abusive parent.

Prepare and File a Complaint

Preparing your divorce case might be a lengthy process. However, you may be able to seek immediate relief by filing criminal charges and/or seeking a protective order from your abusive spouse. For instance, you do not need to wait for the divorce proceedings before raising up issues related to rape, assault, threats, harassing phone calls, and even stalking. You should make an effort to report any criminal offenses to the police that you have not already.

How to keep children safe during divorce from an abusive spouse

The effect on children living in a household where there is domestic violence can vary greatly from one age group to another. The North Carolina Coalition against Domestic Violence (NCCADV) provides a detailed analysis of these effects across children of different age ranges. The following are practical steps on how to keep your child safe from an abusive spouse.

Communicate with the Children

One of best ways you can protect children in divorce is in the way you talk to them about it. While you don’t want to divulge personal details or talk about their other parent’s abuse or indiscretions, it’s important to help them understand that the divorce is not their fault and that they are loved. You will also want to keep open communication in regard to what their life is going to look like going forward – where they’ll be living, if they are going to be able to attend the same school, and how their schedule will change. Young children especially tend to carry the weight of the family’s problems on their shoulders, so emphasizing that what is happening is not their fault is very important.

Additionally, if you unsure about whether or not your child has suffered abuse at the hands of your spouse, take them to see a licensed counselor or therapist. It may be tempting to talk with them yourself but these conversations are better saved for therapy sessions where your child can be guided by a professional through their grief and ultimately their acceptance of the situation.

Get a Domestic Violence Protective Order (DVPO)

This is perhaps one of the most effective measures of protection you can take against an abusive spouse when you have children together. A DVPO if granted essentially allows a court to restrict the abusive spouse’s contact with the rest of the family. Getting a DVPO will not only restrict the abuser’s contact with the victim but also potentially limit their chances at getting custody.

However, it’s worth keeping in mind that protective orders won’t last forever. They usually expire after a year but can usually be renewed for up to another year. If this sounds like a desirable option for you, talk to your attorney in order to understand how and when you would need to renew the order.


While courts in North Carolina will generally attempt to maintain contact between both parents and a child, there are exceptional circumstances where sole custody is granted to a single parent. If you believe your kids are not safe with your abusive spouse, you must bring this to the attention of the courts who will ultimately assess what’s in their best interest. This is where documented evidence of abuse can be especially important. If it is determined that they are not safe with their other parent, you will be granted sole custody.

Spousal and Child Support

If you’re a dependent spouse receiving abuse from your supporting spouse, cutting physical ties doesn’t mean you should subject yourself or the kids to a poorer standard of living. By filing for spousal or child support, you can protect the financial wellbeing of your children without having to see your spouse physically.

Final Thoughts

Domestic abuse is an epidemic that should never have to be endured or witnessed, especially by children. You should make the safety of you and your children a top priority at all times if you’re experiencing any form of domestic violence from your spouse. North Carolina laws can be somewhat complicated when divorcing from an abusive spouse and having to deal with custody arrangements. If you follow the steps above, you can come out the other end with a happy new life for you and your children.