Domestic violence is a serious problem that affects many families in the United States. Sometimes victims of domestic abuse experience several instances of violence before deciding to separate from their spouse or end a relationship. In many cases, domestic violence can escalate over time, so it is important to understand how you can protect yourself from further acts of violence.
Leaving a relationship can be a dangerous time for a spouse or parent who has experienced domestic violence. If you are concerned about domestic violence and are contemplating filing for divorce or leaving an abusive relationship, a family law attorney can help you develop a plan to file for divorce and help you obtain a court order to prevent an abusive partner from contacting you.
Abuse may include assault, battery, coercion, harassment, sexual assault, unlawful imprisonment, and stalking. Missouri Rev. Stat. § 455.010. Following are definitions of these terms:
- Assault – purposely or knowingly placing another person in fear of physical harm.
- Battery - causing physical harm to another person with or without a deadly weapon.
- Coercion - compelling another person by force or a threat of force to do an act which they are legally entitled to abstain from doing.
- Harassment – engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child that serves no legitimate purpose. The course of conduct must be such that it would cause a reasonable person to suffer from emotional distress and must actually cause emotional distress.
- Sexual Assault - causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, duress, or without that person's consent
- Unlawful imprisonment - holding, confining, detaining or abducting another person against that person's will.
- Stalking – engaging in an unwanted course of conduct that causes alarm to another person.
Abuse does not include the reasonable discipline of a child including spanking in a reasonable manner or harm that was inflicted unintentionally. Whether or not an act was intentional will depend on the facts of a situation. For example, if a person commits battery when they were merely intending to scare another person, lack of intent may not be a complete defense to battery because the individual knowingly intended to commit assault.
Filing an Order of Protection
If you feel that you are in immediate danger, filing an order of protection is an option that is available to spouses and former spouses as well as parties who are unmarried who live together, have children together or have another close personal relationship.
Violation of an order of protection is taken very seriously. If you are being threatened with harm, it is important to act quickly to request an order of protection before violence occurs. An order of protection can address issues such as temporary child support and custody.
A temporary ex parte order of protection may be requested in emergency situations. After the temporary order of protection is signed by a judge, it will be served on the other party along with a notice of hearing. At a hearing, a judge will hear evidence from both sides and decide whether or not to extend the order of protection. A full order of protection may be granted for up to one year.
An order of protection will prevent the respondent from contacting the petitioner at all, and a court may order the respondent to stay away from the petitioner's residence and place of work. If the respondent continues to contact the petitioner, he or she may be arrested for violating the order.
A parent or guardian who is worried that a spouse or partner may be violent to a child may file an order of protection on behalf of a minor.
An order of protection can be filed before any physical abuse has occurred. The petitioner will need to present evidence to the court about why he or she feared that there was a threat of imminent harm by the respondent.
Domestic Violence and Divorce
Leaving a marriage after domestic violence has occurred can pose a number of challenges. Many spouses who have experienced domestic violence are concerned that filing paperwork for divorce could lead to retaliation from an abusive spouse. Another concern that many individuals have is how they will support themselves and their children after separation. Speaking with an attorney about the divorce process can help you develop a better idea of what legal strategies can help you with these challenges. Anything you say to an attorney about your situation is confidential and may not be disclosed to anyone including your spouse without your permission.
Many spouses who are contemplating filing for divorce are concerned about what their partner will do when they find out that they intend to leave the marriage. Taking precautionary steps before filing for divorce like petitioning a court for an order of protection can offer some protection from potential abuse and harassment.
When preparing to file for divorce, it is a good idea to keep copies of important documents like your driver's license, Social Security card, birth certificate, and the same information you have for any children in a safe place like a safety deposit box. An instance of domestic violence could create the need for you to leave unexpectedly, so having copies of these documents can help you be prepared to move to a safe place.
After a divorce is filed, one or both parties may request a temporary hearing so that some of the issues that are pending in a divorce like child custody, child support, and spousal support may be resolved before the divorce is finalized. A temporary order will remain in place while the divorce is pending until permanent orders are issued after a final hearing.
Ex Parte Emergency Orders
If you are a parent involved in a child custody or divorce proceeding, you may be able to request an ex parte emergency order if a parent has engaged in conduct that threatens the health or safety of a child. An ex parte order is signed by a judge without the other party present and is only granted in emergency situations. A court may exercise temporary emergency jurisdiction if a child is present in the state and has been abandoned or may be subject to imminent physical danger.
If your case is closed, you may file a petition for a post-decree modification along with a petition requesting an emergency ex parte order.
Filing a petition to request an ex parte order is similar to filing a petition to request an order of protection, but there are differences. An ex parte order may be requested in situations where there has not been abuse or a threat of abuse but a situation has arisen that could threaten the safety of a child. For example, substance abuse in a child's presence could present an emergency situation that merits filing a petition to request a court to immediately suspend visitation pending a hearing.
If a judge grants a request for an emergency ex parte order, a hearing will be set within a reasonable time so that each side may present evidence. At a hearing, a court will decide whether to extend or modify the ex parte order and any previous orders.
Presenting Evidence of Domestic Abuse
If you have alleged domestic abuse in a divorce case, you will be granted an opportunity to present evidence about the allegations at a hearing. Evidence domestic abuse can be presented in many forms, including testimony from you and other witnesses, photographs, documents, and certified convictions if an abusive spouse has been convicted of a crime because of the abuse.
Many spouses who have been subject to abuse are concerned about reporting the abuse to police. It is important to do so and take other measures to protect yourself especially if children are involved. Without other evidence, a judge will be asked to decide who is more credible—you or your spouse.
If you have received notice of an upcoming hearing, make sure that you have advised your attorney about all witnesses who may have knowledge to help support your case. Also, advise your attorney about any evidence you believe your spouse may use against you so that your attorney can help you be prepared.
Protection from Financial Abuse
When contemplating filing for divorce, many people fear not only physical retaliation from a spouse but also financial retaliation. Many people worry that their spouse may give away or conceal assets or sell them for far below their market value. Normally taking assets from another person would be considered a crime, but if the parties are married, there is not much police can do if this occurs. Fortunately, civil courts offer some protection for spouses who are worried that their spouse may give away or transfer assets or fraudulently conceal marital property.
In Missouri, a spouse who believes that the other spouse, due to habitual intemperance or any other cause, is going to squander or fraudulently conceal marital property may file a petition to seek court intervention. Missouri Rev. Stat. § 452.200. A court may issue an injunction to prevent this from occurring and appoint a receiver to control and manage the property for the benefit of the petitioner. A court may also order a person who is holding property for a spouse who has transferred assets to pay the petitioning spouse or deliver the property to them. Missouri Rev. Stat. § 452.210.
Contact a Cass County, Missouri Family Law Attorney
If you have experienced domestic abuse or threats of violence, developing a plan to leave the relationship can help keep you and your children safe. Attorney Joshua J. Wilson can help you request a court order to prohibit further contact from an abusive partner and file for divorce. Contact the Joshua Wilson Law firm online or call (816) 331-9968.