Understanding How Domestic Violence Impacts Divorce in Western New York
Domestic violence in New York is persistent and can affect families in deep ways that impact their present and future lives. False accusations of the same are also damaging. In divorce, both occur. In many cases, a cause for the dissolution of the marriage is domestic violence while in other cases, false accusations are made to exact revenge on a spouse. In both circumstances, the effects are damaging to all involved parties.
At The Abeel Firm PLLC, our family law attorney in WNY will guide you through the process, explaining everything you need to know to be safe and adhere to the rules. The latter is particularly important if there are children involved and one of the spouses seeks child support and/or child custody. Contact us at (716) 250-0681 to schedule a Consultation and get more information on divorce and the role domestic violence plays in it.
What Constitutes Domestic Violence in Western New York?
The definition of domestic violence varies depending on the context in which it is used, and when discussing the legal definition, can vary by jurisdiction. Generally speaking, it is an abusive act committed by one household or family member against another. In some cases, abuse that is not physical can be considered domestic violence. Examples include financial abuse, emotional abuse, isolation, and stalking. Also, there are different circumstances where domestic violence may be charged, including:
- When one roommate is abusive towards another roommate
- When two people share a child together but no longer live with one another
- A couple no longer lives together due to divorce or separation
When a person has been accused of domestic violence, there are several different ways their accuser may be able to prove their case.
Physical evidence tends to carry a lot of weight in proving domestic violence. Physical evidence can include photographs and videotaped evidence of the injuries. Doctor reports, items used in an assault (e.g., a weapon), and damaged property are also considered physical evidence.
If anyone else saw domestic violence take place, their testimony may be used to prove that the domestic violence occurred. This includes any police officers that may have responded to an emergency call to the place the domestic violence occurred. It can also include neighbors, co-workers, friends, family, and others.
Experts on domestic violence can provide evidence in several different ways. They may produce reports after examining the survivor(s) and analyzing the case. They can also help educate the judge and jury on domestic violence and how it has occurred and impacted the current case.
How Does Domestic Violence Impact Divorce in New York?
Some states have different rules for divorces based on fault and divorces not based on fault, also known as a no-fault divorce. A fault divorce is one that is caused by one of the spouses. Reasons for a fault divorce include adultery, abuse, and abandonment. A no-fault divorce is one in which neither spouse caused the separation. Typically, it is stated that the parties had “irreconcilable differences” or the marriage is “irretrievably broken.” No-fault divorces are the norm while at-fault divorces are rarely used today.
In the states that recognize a difference between a fault and a no-fault divorce, a fault-based divorce typically has no mandatory period of time that must pass before the divorce may be granted. In a no-fault divorce, the parties may be forced to wait an extended period of time before divorcing.
If there is domestic violence occurring in a family, having to wait a certain period of time can be dangerous. A domestic violence lawyer in WNY can advise you on the best steps to take. In some cases, if you are the victim of the violence, you can seek a Order of Protection. The at-fault spouse will likely be barred from returning to the marital home, and that may give you some breathing room to prepare for the divorce.
How Does Domestic Violence Impact Property and Debt Distribution in New York?
There are two standards courts use in dividing property and debt in a divorce, and the one they use depends on the jurisdiction. In an equitable division state, the court will attempt to divide the property and debt in a way that is fair to both parties. In a community property state, the court acts on the presumption that all marital property should be split evenly between the parties.
No matter which standard is used, domestic violence may have an impact on the distribution. Courts will consider how the abuse may have caused the abused spouse to not be able to work or other ways in which the abuse affected the ability of each party to contribute to the marriage.
How Does Domestic Violence Impact Alimony in New York?
Alimony, known as Spousal Maintenance, is not designed to be a punishment. However, when the abused spouse is able to show that the abuse impacted their financial ability to be self-supporting due to the domestic violence, the court may award them alimony.
Spousal Maintenance is awarded only when the spouse has a reasonable need for it. That reasonable need may have arisen because of the domestic violence, i.e., the supported/abused spouse was unable to work or secure financial independence due to or in part due to the violence.
How Does Domestic Violence Impact Child Custody in New York?
A history of domestic violence may lead a court to feel that the abusive party is not a safe person to have custody of the children, or may feel that visitation must be supervised. The court will always consider the evidence and decide what is in the best interest of the child in that situation.
On the other hand, if one spouse lies about domestic violence and it's proven in court, the judge will look unfavorably on that spouse. The result could be a custody order that favors the other spouse. Thus, it is important not to accuse unless there is real abuse or threat of abuse.
Contact a Divorce Lawyer in Western New York Today
Divorce is hard enough without the added layer of domestic violence. But if there is abuse in the family, the courts need to know. There are ways to get help and protection. Our divorce lawyers in WNY are here to ensure your divorce goes as smoothly as possible. Contact us at (716) 250-0681 or fill out our online form to schedule a Consultation today.