How Domestic Violence Impacts Divorce Proceedings
According to one study, 41% of women and 26% of men will experience domestic violence in their lives. Violence is also a major reason why people file for divorce. In South Carolina, domestic violence will also have a major effect on a divorce. At Surasky Law Firm, we know how hard it is for abused spouses to complete their divorce, including mediation. Call us to discuss whether you want to divorce, and please also mention if you were the victim of domestic violence. Our Aiken, South Carolina divorce lawyer can help get a protective order, if necessary, and shepherd your case through the court system.
Cruelty is a Grounds for Divorce
South Carolina has some of the most restrictive divorce laws. In some states, a couple can obtain a no-fault divorce in a matter of months. That’s not the case here. Instead, you will need to live separate and apart for at least a year if you want a no-fault divorce.
However, you can seek an immediate divorce based on fault, and cruelty is one ground. This means you could potentially divorce much faster. But you have the burden of proving the cruelty. You will need to present evidence, including witnesses, medical records, and police reports.
Protection Orders for Domestic Violence
Some of our clients are afraid to even seek divorce because they know their violent spouse is likely to stalk or attack them. Domestic violence often keeps people trapped in unhealthy marriages, especially women. Some of our clients also fear leaving because they aren’t sure if they can take their children.
Helpfully, South Carolina law allows you to seek an order of protection. (South Carolina Code § 20-4-10) if there has been domestic violence between household members.
Surasky Law Firm can help with the process. You must file a petition with the court and attend a hearing where you need to present sufficient evidence of domestic violence.
A court may award various relief, including:
Custody of children;
Child support
Possession of the residence;
Temporary possession of personal property, such as a car or pet;
Temporary alimony;
No contact provisions (prohibiting the abuser from contacting you and your children);
Restraining order on disposing of joint financial assets, like a bank account.
This order of protection provides immediate security to abuse victims. If your spouse violates the order—say, he reaches out to contact you or stops by the house—then you can have him arrested. Typically, the order of protection lasts for 6-12 months. We can work to get it renewed if necessary.
Frivolous Allegations of Domestic Violence
To gain the upper hand in a divorce, one spouse might make a frivolous allegation of domestic violence. There are many reasons they do this:
Harassment. They might be angry you have initiated a divorce, so they try to harass you by getting a protective order.
Leverage in child custody disputes. Judges must consider allegations of domestic violence in a contested custody case.
Stay in the house. Your spouse might seek an order kicking you out of the house.
There is a risk with making a frivolous allegation, and we don’t encourage our clients to make up a story of abuse. For example, the judge could hold this against you when it comes time to decide issues in a divorce, such as division or marital property, or alimony. The fact that you lied has negative repercussions, which last throughout the case.
Nonetheless, you shouldn’t be afraid to seek an order of protection where needed. Work with a lawyer at Surasky Law. We can help you pull together evidence in support of your claim, file a petition, and attend a court hearing with you.
Mediating a Divorce when there is Violence
Domestic violence also impacts cases when it comes to mediation. The typical mediation requires that divorcing spouses spend time in the same room or building. A no-contact order could prevent you from being that close together.
In any event, mediation will falter if one spouse is afraid of the other. A violent spouse is also less likely to mediate a dispute in good faith.
Domestic Violence & Division of Marital Assets
A judge is likely to award a spouse more if they were the victim of domestic violence. In South Carolina, judges divide marital assets “equitably,” which is based on many factors. Domestic violence is certainly a factor a judge will consider.
According to Section 20-3-620, a judge will consider “marital misconduct or fault” when determining how to apportion property, regardless of whether you claimed fault as a ground for divorce. Domestic violence is something a judge will consider if it affected the economic circumstance of the marriage or contributed to its breakup.
For example, you might have initiated the divorce because of abuse, or the abuse prevented you from working outside the house. These are common situations where a judge will grant more marital property to the victim.
Domestic Violence and Disputed Custody Cases
Allegations of domestic violence will impact a custody fight. Under Section 63-15-40, a judge “must” consider evidence of domestic violence, along with other factors spelled out in the law. A judge will consider all dimensions of the violence, including physical and sexual abuse, as well as which spouse was the aggressor.
Unsurprisingly, a parent might make a frivolous claim of domestic violence to get immediate custody of the children. We can defend anyone who is falsely accused of domestic violence, and we can try to get a protective order dissolved.
Call Us to Schedule a Consultation
Allegations of domestic violence dramatically alter the trajectory of divorce. You need an attorney who understands what steps to take to seek an order of protection (if you need one) or fight the order (if you are the victim of a frivolous attack). Call us to schedule a time to meet. In a consultation, we can talk about any abuse and what steps you need to take to keep yourself and your family safe.
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