Divorcing When You Have Domestic Violence Concerns: Protecting Yourself and Your Children

  • By:Karpenski & Schmelkin

If you have decided that it’s time to file for a divorce in Massachusetts, but you fear for your safety, it’s time to get the help you need. Filing for a divorce can trigger a domestic violence abuser, causing danger to you and your children. You can file for a 209A restraining order first, before filing for the divorce so that you have some protection in place.

A 10-day emergency order can be obtained in the Probate or District Court.  If you are planning on filing for divorce, Probate Court is preferable. You will go in front of a judge and describe your fears (your spouse will not be present). You must be able to prove that there is a history of abuse with specific incidents. You must also be able to prove “fear of imminent serious physical harm,” and that “the fear [is] reasonable.” To get the restraining order extended requires an extension hearing, where your spouse will have the opportunity to argue his or her case.

How Does a Restraining Order Impact Custody?

A restraining order can include a variety of provisions and obtaining one will depend on your ability to present your concerns clearly to the judge. Restraining orders, also called protective orders or abuse prevention orders in Massachusetts, can factor into the rules for visitation between your spouse and the children. Depending on the circumstances, you may be granted sole custody during a restraining order hearing. The order can include supervised visitation by a third party between your children and your spouse and could even require that your ex attend a batter’s treatment program. A restraining order can have an immediate impact on custody in an emergency situation.

Staying Safe When You Fear Domestic Violence

If you are living with and afraid of your spouse, creating a plan before you file for a divorce can make a difference. You can meet with a safety planner at the probate court in the county where you live. In general, there is a person at the court on staff who will help you develop a plan to get out of your home safely. If you are currently in a marriage where you are afraid and constantly being watched, it can be difficult to reach out to the court system.  In that instance, perhaps a trusted friend can help you.

Find Your Support System

It’s hard to live in a marriage with domestic violence, especially when there are children involved. Legal help is always your best option, because it is easier to navigate the system with legal representation. Consider reaching out to a battered women’s shelter or crisis hotline, but make sure your calls and or emails aren’t being monitored by your spouse. When you want a divorce but aren’t sure how to file for one, your first priority is to get the children and you out of the home safely.

What a Restraining Order Can’t Do

A restraining order is a good start, but it can’t stop your spouse if they are determined to hurt you. If your spouse violates the order, they can be arrested and put into jail for a period of time. Unfortunately, if your spouse doesn’t care about going to jail, a restraining order won’t be much help. In order to keep yourself safe, it is vital to find a living situation that your spouse does not know about and continue to document any communication that occurs. A restraining order is not going to prevent abuse if the abuser doesn’t care about the consequences.

Sharing Your Children with an Abuser

Domestic violence can be hard to prove. If you have spent years trying to hide the violence in your home, it’s almost impossible to prove any incidents of abuse once you decide to leave. Your abuser can lie in court in an attempt to make you look unstable. When the two of you are actively sharing custody, it is vital to set up a clear visitation plan and only meet in neutral, public places when it’s time for the children to go from one home to another. If an emergency occurs, always put the children first and make choices based on their safety.

Making the decision to get a divorce when you are in a domestic violence situation is a brave move. Legal representation is essential to protecting you and your children during this difficult time. If you are concerned about your ex and their potential for violence, seek the advice of an attorney before you file for the divorce.

Your ability to stay safe will depend on how well you can document your history of abuse with the ex, and how clear you can be to the judge when it comes to getting a protective order. If your children express fear of the other parent, let your attorney know this information. While the first custody order might give your ex more than they deserve, you can get a custody order modified if necessary, to keep your kids safe.

Posted in: Divorce