When New York recently became a no-fault divorce state, it became the last state to sign no-fault divorce into law. It was the only state in the United States since 1985 in which grounds had to be proved. Before New York's no-fault law was signed, a party could claim cruel and inhuman treatment which could include domestic abuse, as long as it could be proved. While there is no need to prove grounds in any state, some people may want to proceed with a claim of domestic abuse as a ground for divorce.
Domestic Abuse as a Ground for Divorce
States have different names for the ground which includes domestic abuse. In New York and Texas, for example, the ground is called cruel and inhuman treatment. It can include repeated episodes of domestic violence but it must be proved. In Massachusetts, the ground is called cruel and abusive treatment and is often used in cases where there is domestic abuse.
Reasons to Use Domestic Abuse as a Ground for Divorce
Now that all states are no-fault, it is not always easy to understand why someone would still use fault-based grounds in a divorce matter. In some states, however, it may be a good strategy to prove the existence of domestic abuse in a marriage.
One reason for a party to show domestic abuse is where the state considers the domestic abuse when awarding child custody. Judges in most states will take this into consideration because they do not want to have an abusive spouse raising the children. In this instance, the party alleging domestic abuse is using this as a strategy to help her obtain custody of the children.
In some states, where judges consider fault when awarding spousal support or when distributing property, the party alleging domestic abuse may receive a higher award if it can be proved. Additionally, if the case is going to be settled, the party alleging the domestic violence can try to use the violence to help settle the matter—that allows the victim to use the ground as leverage in getting a better settlement than she might have ordinarily received. The abuser will want to settle since he will probably be afraid of what a judge might do should the case go to trial.
States Which Base Awards on Domestic Abuse
If the parties live in a state which takes domestic abuse into consideration when awarding property, child custody and money, it may be a good strategy to allege domestic abuse as long as it can be proved. A good family lawyer will counsel you about using this ground. Remember, only an attorney can give you legal advice.
