Allegations of domestic abuse are an often challenging and complex issue in divorce proceedings. In addition to the immediate issue of safety, attorneys must consider the significant impact domestic abuse can present with respect to a victim spouse’s financial future. Such considerations may be complicated by the inherent problems prevalent in many abusive relationships – particularly, the economic control exerted by an abuser over his or her victim. Such control can include, amongst other issues: 1) preventing the victim spouse from getting a job, 2) making the victim spouse ask for money, 3) giving the victim spouse a monetary allowance, 4) converting the victim spouse’s money, and 5) preventing the victim spouse access to information and/or documents regarding family income.
The presence of economic control by one spouse over another can make the victim’s divorce attorney’s job exceedingly difficult. From the outset, the attorney and his or her victim client may be at a disadvantage with respect to the discovery of financial information. If the victim spouse has historically been excluded from financial accounts and decision-making (which is typical in domestic abuse settings), it is likely the victim spouse will not be able to assist his or her attorney in gathering necessary financial documents. In some instances, the victim spouse may not be aware of the balance, nature, or even existence of financial accounts. As a result, the attorney should utilize formal discovery methods to ensure complete transparency between the parties. Such a task can be daunting and often economically infeasible, particularly if the victim does not have comparable access to family funds for his or her support and attorney fees. In such instance, securing temporary and final orders for the financial support of the victim is essential.
But how does one go about achieving such orders in a traditionally “no fault” state? In many jurisdictions, the court will not consider marital misconduct in determining temporary and future maintenance awards for the victim spouse. Rather, the focus is on the victim spouse’s needs and ability to self-support versus the abuser spouse’s ability to pay. In order to achieve the best result for your client, it is imperative to draw a correlation between the domestic abuse, and the financial loss or diminished capacity on the victim’s access to financial information as well as his or her ability to earn money.
In some cases, the determination of the abuse-victim’s needs and ability to self-support will be easy. If the victim was physically injured by his or her spouse, he or she may be unable to work due to his or her condition. However, such instances are often temporary in nature, and while this situation may justify an interim award of maintenance, the award of permanent or long-term future maintenance may not be justified. Mental health injuries resulting from years of abuse are significantly more difficult to prove. In these circumstances, the attorney may want to consider a professional evaluation and diagnosis of his or her client’s condition in order to draw a connection between the abuse and resulting mental health situation. For example, some mental health issues caused by abuse, such as Post-Traumatic Stress Disorder, can be so jarring on a victim’s day-to-day life that he or she is unable to work full-time.
A victim spouse may also lack the education or work experience to become self-supporting, often as of result of the efforts of his or her abuser to prevent the victim from working during the marriage. If possible, the attorney will need to secure an award of maintenance in an amount and duration sufficient for the victim to complete his or her education and transition into the workplace. To assist in achieving this goal, the attorney may consider retaining a vocational expert to evaluate and provide a report to the court concerning the victim’s anticipated costs, timeline and opportunities to reach his or her career goals.
Length of marriage is an important consideration when determining the amount and duration of maintenance. For many victims of domestic violence, the cycle of abuse causes the victim to stay in an abusive relationship for a period far longer than he or she wants. Articulating the reasons for the root causes of long periods of abusive relationship can be difficult, especially when the court is unfamiliar with the pattern of power and control that often drives the victim’s decision to remain in such toxic relationship. Educating the court concerning the behavioral patterns of abuse, and the impact of such abuse on the victim is crucial.
Proving the existence of abuse during the marriage can also be difficult if the victim did not earlier seek the assistance of law enforcement or the court in protecting himself or herself during the marriage. The victim’s attorney should consider alternative and possibly more creative methods of proof. Are there witnesses to the abusive behavior? Did the victim disclose the abusive behavior to a trusted friend or family member? If the victim has sought therapy, is it possible that he or she has revealed past incidents of abuse that would lend credibility to the victim’s accounts?
In “no fault” jurisdictions where the existence of abusive behavior is the driving factor, it is important to “think outside of the box” when formulating a strategy to protect your client’s financial future. When an award of maintenance is not available, a victim spouse may still be entitled to a larger portion of the division and allocation of the marital estate. Even in traditionally “no fault” jurisdictions, the court will often consider efforts to dissipate, control, or otherwise conceal marital assets from the victim spouse during the marriage or in anticipation of divorce when dividing assets.
If you or someone you know is experiencing domestic violence, help is available at 800-799-7233 or text START to 88788.
