Reviewed by Diana Szabo, Esq.
For many, suffering abuse at the hands of their spouse or partner can seem like a never-ending cycle. Unfortunately, victims of domestic abuse are often too afraid to file for divorce, as they worry about the repercussions they may face for doing so. However, if you’ve been able to do so safely, understanding the impact the violence you’ve endured can have on the outcome of your divorce is critical. The following blog explores what you should know about how these matters are handled in New York and why connecting with Long Island domestic violence lawyers is critical to fighting for your rights during this incredibly difficult legal process.
If you are in immediate danger, call 911. The New York State Domestic and Sexual Violence Hotline is available at 1-800-942-6906, free and confidential, 24 hours a day. Advocates there can help with safety planning, shelter, and connecting you to a local program, whether or not you have decided to do anything about your marriage.
What Constitutes Domestic Violence?
Domestic violence is any act of abuse that occurs between two people in an intimate relationship. They do not have to be romantic partners, though these relationships are often associated with violence. It’s also important to understand that individuals may still be victims of domestic violence even if their partner has never physically hit them.
Typically, domestic violence occurs when one partner uses physical, sexual, financial, emotional, or verbal abuse to maintain power and control over the other. They may make the victim dependent on them to keep them in the cycle of abuse. Examples of abuse one may suffer include, but are not limited to, the following:
- Physical abuse – hitting, punching, pushing, slapping, shaking
- Sexual abuse – rape, molestation, assault
- Financial abuse – limiting the victim’s own income or taking it as their own
- Stalking – in-person or online
- Verbal abuse – humiliation, degradation, ridicule
- Emotional abuse – gaslighting, isolating, threatening
You Do Not Have to File for Divorce to Get Protection
It is important to understand that filing for divorce and seeking a protective order are two separate processes, and a protective order begins immediately. A protective order does ot depend on whether or not you’ve filed for divorce, what ground you are filing on, or if your spouse has pending criminal charges.
To obtain a protective order, you must file a family offense petition in Family Court. There is no filing fee, you do not need an attorney, and the clerk’s office will help you complete the petition. The court can issue a temporary protective order the same day, before your spouse is even notified. If you need a protective order outside of court hours, local town and city courts can issue orders that the Family Court can take up when it reopens. If you cannot afford an attorney, one will be appointed to you by the court.
What an Order of Protection Can Require
Depending on the circumstances, a court can direct your spouse to:
- Leave the shared home, even where it is in their name
- Stay away from you, your children, your home, your workplace, and your children’s school
- Have no contact at all, including by phone, text, email, social media, or through friends and relatives
- Surrender any firearms and give up their licence
- Comply with a temporary custody arrangement while the case proceeds
Violating an order of protection is a criminal matter, and the police can arrest on it.
If I’ve Endured Domestic Abuse, Will It Impact My Divorce?
If you are a victim of domestic abuse at the hands of your spouse, it’s important to understand the impact the violence you’ve faced can have on the outcome of your divorce. Generally, one of the most substantial areas this will influence is child custody. If you and your spouse share a child together, and you have evidence of the abuse you’ve endured, it likely will not be in the best interest of the child to remain in the abuser’s custody. As such, they may have limited supervised visitation with the child as opposed to shared custody.
It’s also important to understand that this can have a significant impact on an alimony award. The courts will not order an abuser to pay spousal support as a punishment. However, they may understand that the abuse suffered by the victim has likely impacted their ability to be self-sufficient and earn an income, warranting payment.
None of this rests on a judge’s sympathy. New York has written domestic violence into the statutes that govern each of these decisions:
- Domestic Relations Law § 240 requires a court deciding custody to consider proven domestic violence.
- Section 236(B)(6) lists acts that have inhibited a spouse’s earning capacity among the maintenance factors, and names domestic violence among them.
- Section 236(B)(5)(d)(14), added in 2020, makes domestic violence a mandatory factor in equitable distribution, meaning it can affect how marital property is divided and not only what support is paid.
That last one is often overlooked. Abuse is relevant to the division of the assets, not only to custody and maintenance.
Filing on Fault Grounds Will Not Speed Anything Up
It is a misconception that filing for divorce on cruel and inhuman treatment will move the divorce faster or secure protection. This is not true. New York does not impose a waiting period for divorce, so filing on fault grounds does not speed the process up. Additionally, fault grounds must be proven, which often results in contested hearings and a longer case. Protection orders result from an order of protection, which is obtained separately and available, regardless of how you file for divorce.
Contact an Experienced New York Divorce Attorney Today
Filing for divorce when in an abusive relationship is not something many people are able to do for safety reasons. As such, if you’ve filed, ensuring you work with an attorney to fight for the best possible outcome for your divorce is critical. At Barrows Levy PLLC, our team is dedicated to fighting for you. Connect with our team today to learn how we can help you start the next chapter of your life.
