Does Spousal Abuse Have Any Effect on a Divorce?

Find out how domestic violence can affect a divorce—how it affects issues like property division, financial support, child custody, and, most critically, safety.

Spousal abuse is a type of domestic violence that occurs in a marriage. It can include mental, verbal, emotional, physical, and sexual abuse. Divorcing an abusive spouse can bring unique concerns and considerations to the divorce process.

How Abuse Might Affect the Type of Divorce You Choose

In general, there are two types of divorce: fault-based and "no-fault." Some states give divorcing spouses the option of filing a fault-based divorce, while in other states, all divorces are legally classified as no-fault.

If your state gives you the choice, carefully deciding which type to file is critical when you've experienced spousal abuse. That's because your decision will likely affect how much personal—and potentially painful—information you must disclose to the court.

No-Fault Divorce

In a no-fault divorce, the filing spouse requests a divorce based on one of the state's no-fault legal grounds. Every state has its own grounds for no-fault divorce, but the most common include:

  • separation
  • irreconcilable differences
  • irretrievable breakdown, and
  • incompatibility.

The filing spouse does not have to claim that there has been any marital misconduct in order to get a no-fault divorce. Instead, the spouse needs to tell the court only that the marriage is over and there's nothing they can do to reconcile it. As long as the spouses meet the state's other divorce requirements, the court will approve the divorce.

Fault-Based Divorce

In a fault-based divorce, the filing spouse must claim that there is a more specific legally recognized reason for the break-up. States that allow fault-based divorces have their own sets of reasons. Most of the time, these include:

  • adultery
  • spousal abuse
  • felony conviction
  • abandonment, and
  • substance abuse.

If you live in a state that recognizes fault divorce, you can allege in your divorce paperwork that your spouse's abuse caused your marriage's breakdown. You will need to prove your claim of abuse by presenting evidence (such as witness testimony, telephone records, police records, or photos) in court. The judge might require you to testify or file an affidavit (a written statement made under oath) swearing that you have experienced spousal abuse.

Pros and Cons of Fault vs. No-Fault Divorce

If you pursue a fault-based divorce, you will need to share the details of your experience and even produce evidence demonstrating that your claims are true. A fault-based divorce is also more likely to become contentious—some who already have reasons to fear for their safety choose not to add fuel to the fire in this way.

Aside from safety and emotional considerations, fault-based divorces generally take longer and are more expensive than no-fault divorces. (Anyone who is filing a fault-based divorce should almost always have a lawyer.) If you are looking to get out of your marriage quickly and don't have access to the funds to support a court battle (or a free legal aid lawyer), a no-fault divorce might be your best choice.

If you can file an uncontested no-fault divorce—meaning that you and your spouse agree on all the issues in your divorce, such as property division and child custody—you might be able to save even more money by representing yourself or using an online service.

How Spousal Abuse Can Affect Divorce Hearings and Proceedings

If your spouse is abusive, you can request a protection order from the court during your divorce. For example, you may ask the court for a temporary restraining order (TRO) requiring your spouse to stay away from you and not have any contact with you. (Depending on where you live, such an order might be called something like a "protective," "protection from abuse" (PFA), "no contact," or "personal protection" order.) In some states, you can get all the forms you need to make the request from the court clerk or the court's website. In others, you can access the documents you need online through your local legal aid organization.

A judge who reads your request for a protective order and believes your safety is in danger can issue the order and put it into effect immediately. If your spouse disputes the need for a protective order, however, you might need to attend a hearing so the judge can hear both sides before making a decision. If you're concerned about seeing your spouse in person during the hearing, let the court clerk know before the hearing begins so that the court can make arrangements to avoid having you meet face-to-face.

Once the court issues a protective order, if your spouse disobeys the order, you can call the police and have them arrest your spouse. Violating a protection order can be a severe offense and result in your spouse spending time in jail. However, a protection order cannot shield you from all harm—if you feel that you or your children are in immediate danger, call 911.

Aside from getting a protective order, learn more about what you can do to protect yourself when leaving an abusive relationship.

Spousal Abuse's Effect on Financial Outcomes in a Divorce

Even when you choose a no-fault divorce, misconduct like spousal abuse might come to light when the court is determining how to distribute assets and liabilities or making a decision about spousal support (alimony).

Property and Debt Distribution

Among the issues that the court must decide during your divorce proceedings is how to divide your marital property and hand out your debt. Depending on where you live, the court will use either equitable distribution or a community property standard.

  • In equitable division states, the judge will try to divide property in a way that's fair—but not necessarily equal—to both spouses.
  • In community property states, the court presumes that all marital property acquired during the marriage belongs to each spouse equally.

In all states, spousal abuse can affect the distribution of property, especially when the spouse who has experienced it can show that it caused them financial losses or diminished their ability to earn money.

Alimony

Spousal abuse can also influence a judge's decisions about alimony. Alimony (also called "spousal support" or "maintenance") is a court-ordered payment that one spouse pays the other for a specific period of time.

In general, judges award spousal support only to spouses who need financial support during or after the divorce—they don't order one spouse to pay alimony as punishment for bad behavior during the marriage.

But even though fault alone isn't usually enough to justify an alimony award, again, most courts will consider how spousal abuse has affected the abused spouse's ability to be self-supporting. For example, a wife who can demonstrate that an injury from her husband prevented her from continuing to work or who can testify that her husband prevented her from working outside the home would likely be awarded support on those grounds.

On the flip side, in some situations it's possible for an abusive spouse who demonstrates financial need to get alimony from the spouse who has been abused. Some states' laws prohibit judges from considering a spouse's marital behavior when determining alimony; many others leave it up to the judge to decide whether a spouse's abusive behavior should excuse the victim spouse from having to pay alimony. In at least one state (California), though, a conviction of domestic violence can disqualify the abusive spouse from receiving alimony.

Spousal Abuse's Impact on Child Custody

Each state has laws that allow courts to consider domestic violence between parents when deciding child custody. Regardless of where you live, the judge must always consider what's in the child's best interest when deciding custody. In most states, the judge will evaluate:

  • each parent's ability to provide necessities for the child
  • the child's preference
  • each parent's mental and physical health
  • the child's history with each parent, and
  • anything else the judge believes is important.

If there's a history of domestic violence in your family, the judge will consider it before finalizing any custody decisions. Courts often limit an abusive parent's custody rights—for example, by prohibiting overnight visitation. In extreme cases, a judge might terminate the abusive parent's right to visitation and award full custody to the other parent.

If you fear for your or your child's safety, in addition to seeing our Resources for Victims of Crime, let the court know. Judges can create custody orders that include protective measures, such as requiring that a professional supervise all visitation periods or that all exchanges of children take place in a public place like a police station or fire department.

How a Criminal Domestic Violence Case Might Affect Your Divorce

Spousal abuse can affect the outcome of your divorce—and it's a crime. (In criminal law, this crime is often called "domestic violence" or "domestic abuse.") Here are some domestic violence scenarios that divorce courts encounter:

  • New accusation. One spouse has accused the other of spousal abuse in the divorce proceeding but the police and court system were never involved.
  • Accusation, but no charges. The police investigated and filed a domestic violence report, but the prosecution didn't file charges or dropped them.
  • Conviction. The abusive spouse has actually been convicted of domestic violence or violation of a protective order.
  • Acquittal. One spouse was charged with, but acquitted of, spousal abuse.
  • Ongoing case. There is an ongoing criminal case or investigation happening at the same time as the divorce proceedings.

If any of these scenarios describe your situation, consider hiring a lawyer or using the resources mentioned above to get legal assistance. Having an official record of abuse (such as law enforcement reports, a current case, or past conviction) could support your arguments in favor of getting custody of your children, receiving support, or specific property division. When your spouse is the subject of an ongoing criminal investigation, it's especially important to seek legal help. Any time you feel that you or your loved ones are in current danger, contact 911.

Sharing Information About Abuse When Getting a Divorce

Some spouses who have experienced spousal abuse don't want to bring the matter up in the divorce process. (Perhaps they don't want to revisit hurtful memories or are afraid of how the abusive spouse might react.) Although victims aren't usually required to bring up abuse, it might come up in divorce proceedings even when the victim doesn't raise it. But for victims who have a choice in the matter, the decision of whether to get into the issue of domestic violence in the divorce process is deeply personal and can depend on factors like how severe and long ago the abuse was.

Get the Help You Need

If your divorce involves domestic violence, it's important to proceed thoughtfully and carefully. Take care of yourself and your children by asking for assistance and advice when you need it. Listen to your gut when something seems wrong or out of place, and don't hesitate to call upon the many resources that are available—including law enforcement—if you have any doubt about your or your children's safety.

Taking the step of divorcing an abusive spouse can be tough, but it's possible—and you can come out on the other side having made major progress towards a better life for yourself and those you love.

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