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Divorce and Family Violence

Family or Dating Violence

This article tells you about getting divorced when there has been family violence.

Here, learn how family violence can impact various aspects of divorce proceedings, including waiting periods, emergency relief, custody and time with children, division of community property, and spousal maintenance. If you are experiencing family violence, seek help and make a safety plan. This article was compiled from several different sources, including the National Domestic Violence Hotline.

What is family violence?

Family violence is also known as domestic violence. It harms adults and/or children. The law says certain violent acts are “family violence” when it happens between members of:

  • a family or household (including an act toward a child of the family or household), or
  • a past or present dating relationship

Note: The law says the “family” in family violence means:    

  • members of the same family (related by blood or by marriage), or
  • spouses or former spouses, or
  • parents of the same child, or
  • foster parent(s) and foster child(ren)

Family violence can take many forms. It is not just physical abuse like hitting or kicking. Some common examples include:

  • threats 
  • stalking
  • physical abuse
  • sexual abuse
  • using controlled substances (drugs) in a way that causes injury to a child
  • encouraging or specifically allowing a child to use controlled substances (drugs)

What if I’m afraid for my safety or for the safety of my children?

If there has been violence or you feel that you or the children are not safe, get help right away by calling one of the organizations listed below. You may be able to get free legal help.

  • National Domestic Violence 24-Hour Hotline, 800-799-SAFE (7233)
  • Crime Victims, 888-343-4414
  • Texas Advocacy Project, 800-374-HOPE
  • Legal Aid for Survivors of Sexual Assault, 844-303-7233
  • In an emergency, call 911.

WARNING!  Family violence can get worse when you start the divorce process. Take steps to protect yourself and talk with one of the organizations listed above before filing for divorce.

How can family violence affect my divorce?

Family violence is serious. Talk with a lawyer if you or your children have been the victim of family violence. It can affect many issues in your divorce, including:

Waiting periods. Without family violence, there is a standard 60-day waiting period for a divorce. 

Emergency relief. You may be able to get a temporary restraining order (TRO) and other emergency protections if family violence has happened. A judge can make orders to help keep you and your children safe, such as ordering your spouse to stay away from or not contact you or the children. 

Custody and time with children. Family violence is significant in custody decisions because it impacts what must be decided: what is in the child’s best interest. Custody decisions include, for example:

  • who has the right to determine where the child lives, 
  • who makes medical, education, and other important decisions for the child, and
  • how much time each parent gets with the child (possession).

To make custody decisions in a divorce with children, the judge must consider physical or sexual abuse by one party against:

  • the party’s spouse, 
  • the child’s parent or 
  • any child

The judge will not name joint managing conservators if a pattern or history of child neglect, or physical or sexual abuse is shown by credible (believable) evidence. When family violence is established, it is more likely that the judge will name the non-abusing parent sole managing conservator of the child.  

A judge can also make any orders needed to keep the child safe, such as taking one parent’s right to decide for a child away or ordering supervised access to a child.

Division of community property. The court divides community property between two parties according to a “just and right” division. Judges use different factors (including grounds for the divorce, if any, like cruelty or conviction of a felony) to decide what a “just and right” division is. Family violence can impact what a “just and right” division means in your divorce.

For more information, read Dividing Property and Debt upon Divorce.

Spousal maintenance. A judge can order payments (called “spousal maintenance”) from a spouse’s future income to another spouse as part of a divorce. The court may grant spousal maintenance in limited circumstances if certain statutory requirements are met. Generally, the court may award maintenance if the spouse will not have enough property and money to meet their minimum reasonable needs and if the spouse paying maintenance was convicted of or received deferred adjudication of a criminal offense that is also family violence within two years before the suit was filed or during the suit. The spouse who committed family violence must have been convicted of or received deferred adjudication for a criminal offense that also constitutes family violence. See Texas Family Code 8.051.

There are other limited circumstances when the court may grant spousal maintenance. Those factors are laid out in Texas Family Code 8.052.

There are limits on how long spousal maintenance is paid. See Texas Family Code 8.054.

See also Child Custody and Conservatorship.

Can a protective order help me?

If you or your children have experienced family violence, you may need a protective order. A protective order can often be part of a divorce, but it is not a substitute for an order of divorce or custody order. Still, in a protective order, a judge can order the other side:

  • not to hurt, threaten, or harass you or your children 
  • to stay away from you, your family, your home, workplace, and children’s daycare or school
  • to move out of the home (“kick-out order”)
  • not to carry a gun, even with a license

The protective order can also: 

  • set terms and conditions for visitation with the children
  • order the other side to pay child support and medical support

Find out more in this website's Protection from Violence or Abuse section. 

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