How to obtain protection and press charges while filing for divorce from an abuser
If you or someone you love is experiencing domestic abuse, call the 24/7 Domestic Violence Hotline at 1-800-799-SAFE (7233).
Domestic violence can take many forms despite the narrow definition shown in popular media. Some people don’t consider divorce because they believe what they’re experiencing isn’t “real abuse.” Others worry that pursuing a divorce will worsen the situation.
This is a complex topic, and everyone’s experience is unique. The only thing they have in common is that no one deserves to be abused. Let’s talk about the challenges of divorce in a domestic violence situation and how to stay safe.
What counts as domestic violence?
Many mental health professionals and victim advocates prefer the term “domestic abuse.” This specifically describes the toxic relationship dynamic and avoids relying on visible violence to define the problem. Someone can abuse their spouse without ever striking them. Indeed, 114 million U.S. adults have experienced “psychological aggression” that damages their self-esteem and inhibits their freedom.
Domestic abuse is a pattern of deliberately manipulative, violent, and/or destructive behavior, leveraging power and control, that is perpetrated against a family member. This includes:
- spousal abuse (or more generally, intimate partner abuse)
- elder abuse
- child abuse
We’re focusing on intimate partner abuse for this article. Unfortunately, that has long been construed as “wife beating,” which is only one of many ways an abuser can harm their partner.
For decades, that limited view of domestic violence made it difficult for victims to get law enforcement involved or seek legal help. It wasn’t until the 1994 Violence Against Women Act (VAWA) that intimate partner abuse was considered a criminal offense. [VAWA has been reauthorized several times, with varying support levels for victim-centered healthcare and law enforcement.
However, the US. Department of Justice somewhat rolled back the definition of domestic violence to focus on criminal offenses. And indeed, many states regard domestic abuse in a criminal context, which entails a need for police involvement. Penal codes still tend to focus on physical or sexual assault, leaving emotional and financial abuse to private nonprofits and mental health providers.
This doesn’t mean that victims are without legal options, though. Protection orders and divorce are both civil remedies that can help the victim leave an abusive relationship.
Is domestic abuse grounds for divorce?
Until 1969, most states only granted divorces based on “fault.” This typically meant “cruelty,” including physical abuse. Thus, one had to demonstrate that the cruelty happened. Those whose spouses were emotionally, financially, or sexually abusive toward them often had a hard time proving this cruelty to the courts.
Thankfully, most states now have a means for “no-fault” divorce. Law enforcement agencies and family courts have also evolved their views on intimate partner abuse.
Domestic violence in Texas law
Texas law doesn’t say much about domestic abuse besides physical and sexual assault. As with most laws regarding this, both the action and a reasonable threat may constitute assault.
The Texas Penal Code Sec. 22.01 defines assault as:
- “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
- “intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
- “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”
Sec. 22.02 then defines aggravated assault as causing or threatening serious bodily injury. This, too, can apply to marital abuse.
What about abuse that doesn’t include bodily injury? The Texas Family Code 71.0021 defines “Dating Violence” as an action intended to result in or threaten bodily injury or sexual assault against a current or former intimate partner.
However, neither the Texas Penal Code nor the Family Code includes any language about financial, psychological, or emotional abuse in these definitions. Therefore, those typically call for civil remedies, including fault-based divorce.
Responding to domestic abuse
Domestic abuse was considered a civil matter for decades. The Violence Against Women Act, along with many state laws and court cases, allowed it to be addressed as a criminal offense.
Civil remedies can also provide relief. One of the most common methods is a court order to limit your contact with an abusive partner.
Restraining orders in Texas
Many people confuse “protective order” with “restraining order.” However, these are granted differently and serve distinct purposes.
The restraining order is also called a Temporary Restraining Order (TRO) or injunction under Texas law. It’s a type of emergency temporary order issued until a judge can set longer-term orders. As defined in the Texas Family Code Sec. 6.501, a TRO can help victims of dating or domestic abuse in several ways:
- restrict one party from the use or sale of certain property (however, it cannot exclude a spouse from their residence)
- restrict one party from calling, messaging, or attempting to contact the other in a harassing manner
- restrict one party from accessing the other’s bank accounts
- keep one parent away from a child
- prevent changes to beneficiaries on insurance policies or financial accounts
- prevent one party from incurring debt or spending money that would constitute shared property
- falsifying, deleting, or destroying personal records
TROs last 14 days or until the temporary orders hearing, whichever happens first.
It’s important to note that TROs are civil remedies. Therefore, police cannot enforce them. If one party violates the restraining order, the other must return to court for a hearing and resolution.
In other words, restraining orders are not meant to address domestic violence. However, they can help prevent abusive situations from escalating while one party seeks divorce or other remedies.
Temporary Restraining Orders are helpful tools for any divorce case, not just domestic abuse situations. They set clear guidelines for how the spouses can and cannot interact, share assets, and care for children.
Protective orders in Texas
Under Texas law, protective orders can only be granted for victims of dating violence (as defined in Texas Family Code 71.0021) or family violence, which includes marital relationships. In other words, they’re meant to prevent bodily injury, sexual assault, or any abusive behavior that creates a reasonable fear of those happening. They’re not intended to stop your soon-to-be ex from calling or texting incessantly. (However, a TRO can do that.)
A protective order (aka an order of protection) is a permanent remedy. Unlike TROs or other temporary orders, a protective order can be enforced criminally. Protective orders demand that a certain person stop harassing, assaulting, stalking, or threatening a specific victim.
A judge may grant a protective order at the temporary orders hearing once they’ve heard all evidence.
Planning to leave a domestic abuse situation
Now that we know what remedies are available, let’s tackle the tough question: how can one safely pursue them?
We hear it all the time from society. “Why didn’t she just leave?” “Why didn’t she call the police?”
Consider what we just learned:
- You can request a Temporary Restraining Order (TRO) but it only lasts 14 days, and police cannot enforce it.
- To obtain a protective order, you must demonstrate to a judge that there is an imminent threat to your safety.
- Getting a permanent protective order requires you to submit evidence that may be difficult to obtain.
So, it’s rarely as simple as “leaving.” Filing for divorce can be dangerous when one’s spouse is abusive. Merely expressing a desire for divorce or trying to leave may worsen the situation.
That’s why it’s vital to make a multi-pronged plan of escape.
- Be ready to file for a Temporary Restraining Order, especially if children are involved. Talk to an attorney to discuss your options.
- Document as much as possible. Write down dates, times, and details of critical incidents. There are even helpful apps to document domestic abuse.
- Call 911 if you perceive an immediate threat to your or someone else’s safety. Don’t wait for the threat to become actualized. Any situation in which someone could get hurt is an emergency!
- Make a list of shelters and other resources that can help, especially if you are financially dependent on your abuser.
Pressing charges during a divorce
Because divorce is a civil matter, it operates parallel to any criminal remedies one may seek. For example, pressing assault charges involves police and the criminal court.
However, this doesn’t mean criminal charges don’t affect divorce proceedings and vice versa. Anything that gets law enforcement involved may affect how a judge issues protection orders and other remedies. On the flip side, temporary restraining orders could impact how police respond to a criminal complaint against the offender.
It’s always helpful to have a compassionate lawyer on your side. Police know how to respond to criminal matters, but a lawyer can guide you through the complex processes and make sure you protect yourself at every turn.
At Alexandra Geczi Family Law, we’re here for you as you pursue a divorce, even in the most harrowing situations. Reach out now for an empathetic, supportive consultation.