Divorce from an abusive spouse can be difficult emotionally and mentally. In Texas, the laws concerning the dissolution of marriage allow for victims of abuse to be protected and for the process to be sped up. Under certain circumstances, it is common for family law judges to take away various rights from abusers, such as child custody, child visitation, and asset division.
The Brazoria County family law attorneys at Terry & Roberts Law can help explain these laws and answer pressing questions about abuse and divorce in Texas. These matters can be complex. Our experienced family law attorneys can walk you through the intricacies of Texas family law and walk beside you to a successful resolution.
The Impact of Domestic Abuse and Divorce
According to the Texas Council on Family Violence (TCFV), over 170 victims of family violence seek help every day to escape abuse. That is more than 80,000 domestic violence victims in Texas each year. In many of these cases, especially when children are involved, the escape results in the dissolution of a marriage.
Texas is a no-fault divorce state, allowing married couples to divorce without providing a specific reason or proving fault. While domestic violence is not specifically named, the term “cruelty” is listed under the Texas Family Code as a reason to grant a divorce. This means if one spouse commits cruel acts or treats members of the family cruelly, thus creating an unlivable situation, the mistreated spouse can gain their freedom from the marriage contract.
Cruelty can be classified as physical, emotional, or sexual abuse. The victim must present evidence of the abuse, which can include photos of their injuries, medical records for treatment, and police reports.
Divorce and Emergency Protective Orders
In volatile circumstances, serving an abusive spouse with divorce papers can make a dire situation worse. If a spouse is threatening you or if you feel like the safety of you and your children is at risk, seeking a temporary emergency protective order should be the first step in the separation process.
Often, abused spouses will seek refuge in a women’s shelter, which can provide:
- Temporary housing
- Counseling
- Assistance for victims with children
Under Texas’s Family Code, judges can issue a protective order without a hearing or without even speaking to the abuser if they create a clear and present danger of violence to the family.
These protective orders can be issued for up to 20 days, and upon request, they can be extended for another 20 days. Before the expiration of a temporary protective order, a hearing should be held to request a final protective order from the judge. A final protective order may last up to two years.
Exemptions From the Normal Divorce Process
In an ordinary case, divorce papers are delivered to a spouse by a constable or a process server. In the case of an abusive spouse, emotions can get elevated, and the situation can become unpredictable. It is best to stay away from an abusive spouse during this time and find a safe place during the serving process.
Typically, spouses must wait 60 days before a divorce is finalized. However, a judge can speed things along and waive the waiting period when a spouse is abusive. The judge can also issue a waiver when the abusive spouse already has a restraining or protective order against them or the spouse has been convicted of domestic violence.
Trying to leave an abusive partner is the most dangerous time for survivors of domestic violence. It’s vital to have capable and trustworthy professionals on your side to protect you and your children. A skilled divorce attorney can make sure you never need to speak or interact with your abusive ex as you file for divorce.
Abuse Concerning Child Custody and Division of Property
If there is a history or pattern of physical, sexual, or emotional abuse by one parent against the other parent or a child, Texas law prohibits a judge from granting shared child custody. Also under Texas law, a parent with a history of domestic abuse or family violence is prohibited from having sole custody of a child. This is also true if there is evidence a parent has abused or sexually assaulted a child within the last two years.
A parent with a history of domestic violence does not automatically exclude them from all access to a child or custody rights. There are circumstances when a court will determine visitation would not endanger a child’s emotional or physical health and may deem visitation in a child’s best interest. In most of these cases, the court grants supervised visitation after an abusive parent agrees to attend a treatment program.
These types of programs typically include:
- Battering intervention and prevention program (BIPP)
- Anger management
- Drug rehabilitation
Certain restrictions apply, and these visits can be canceled for a multitude of reasons, such as if the parent arrives for a visitation while under the influence of alcohol or drugs.
Texas is a community property state, meaning anything acquired by the couple while they were together is usually split 50/50. However, there are exceptions when domestic violence is involved. When abuse is present, a judge may find reasons to divide assets unequally.
Abuse, Divorce, and Criminal Charges
Sometimes, the process of divorcing an abusive partner is not enough. Criminal charges may be necessary to ensure your and your children’s safety. Police do not always need a warrant to make arrests in domestic violence cases.
Arrests can be made for the following reasons:
- Evidence of physical abuse or injury
- Incident reported to police within the previous 48 hours
- Officers have probable cause to believe perpetrators will continue to physically abuse family or household members
A spouse will not be forced to testify against their abuser in court if they file criminal charges against them, but they retain the right to do so. Charges in these cases typically include various misdemeanors, such as:
- Assault
- Communicating threats
- Harassment
- Trespassing
In some situations, these charges can be elevated to the felony level, such as when the abuser uses a weapon to threaten or assault the victims. Marital rape is a second-degree felony and can result in a 20-year prison sentence upon conviction. If marital rape includes threats, the use of drugs, or physical violence, the assailant can be charged with a first-degree felony of aggravated sexual assault, carrying fines up to $10,000 and a maximum sentence of life imprisonment.
Seeking a Divorce from an Abusive Spouse? Contact Us Now.
Divorce can be an emotionally taxing process. Abuse in the household only complicates matters worse, and the resulting fear can stop a spouse from leaving an abusive relationship. A skilled lawyer with experience in these cases can help you along your journey step by step, providing important emotional and legal support.
If you need to escape an unhealthy marriage, the Texas family law attorneys at Terry & Roberts are here for you. Our team of compassionate lawyers can discuss your best options and guide you through ways to protect you, your children, and your rights.
When you are ready, contact us so we can help navigate these trying times while making your divorce as painless as possible.