Divorce and Domestic Violence: Top 5 Misconceptions of Victims of Domestic Violence
Domestic violence between spouses is something that is all too common. In fact, 1 in 3 women and 1 in 4 men have been a victim of [some form of] physical violence by an intimate partner at some point in their lifetime.[i] However, the victims of domestic violence often feel that there is nothing that they can do or that their circumstances keep them trapped with the abuser. This is especially true for victims who are married or who are going through a divorce. Fortunately, many of the set-backs often keeping a victim from leaving their abuser can actually be addressed in a Domestic Violence Restraining Order.
This article will focus on five common misconceptions many victims of domestic violence face and how those fears can be overcome by a California Temporary Restraining Order or a Domestic Violence Restraining Order. Although there are various types of restraining or protective orders which can be obtained by a victim in California, the Temporary and Domestic Violence Restraining Orders obtained in California Family Court offer some unique types of protection and can be obtained by the victim alone.
Of course, victims of domestic violence should contact the police whenever it is safe and practicable to do so and seek out knowledgeable legal counsel to determine their best legal course of action against the abuser.
- “I can’t leave them because I’m afraid to leave them with the kids.”
One of the most common reasons victims of domestic violence stay with their spouse is because they are afraid that if they leave their children with the abuser he or she will “take it out” on their children. However, a judge has the ability to make a decision about where the children should be staying immediately and can make temporary child custody orders in the initial restraining order. In addition, if there has been violence against the children, they can also be protected in the initial restraining order, which can also go into effect immediately. Knowing that the children can be protected from an abuser immediately should give victims the confidence to seek a restraining order and get themselves (and possibly their children) out of dangerous situation as soon as possible.
- “They control the money- if I try to leave there’s nowhere I can afford to go/I can’t afford take the kids with me.”
Another reason victims of domestic violence stay with an abusive spouse is because they are afraid of being “cut off” financially and having no ability to afford a space away from their abusive spouse. What they do not know is that a judge has the ability to make temporary spousal support and child support orders at the Domestic Violence Restraining Order hearing (usually a few weeks from when the initial paperwork is filed) – so that the victim has money to get back on their feet and support the children if they are staying with him or her. This makes renting a place or simply being able to get away from the abusive spouse a reality.
- “I don’t want to leave our home.”
Similar to above, a victim of domestic violence may not wish to leave the marital home if they can’t afford to move out. If there is good cause, the victim can seek what is called a move-out order and the judge has the discretion to make the abuser move out of the marital home immediately. In fact, if a judge does determine the situation warrants a move-out order, a visit will usually be coordinated with the local sheriffs department to have an officer present while the abuser collects their things and moves out, thus ensuring protection for the victim. A move-out may be temporary or permanent and the spouse moving out may be entitled to “credits” if they are still paying the mortgage depending on the facts and circumstances of each case.
- “They scream at me, swear at me, make threats, call me obsessively when I’m out of the house, throw things and punched in our wall – but he/she hasn’t actually physically hit me yet-so there’s nothing I can do.”
Another common misconception that victims have is that the abuser has to be physically violent in order to obtain a Domestic Violence Restraining Order. Although physical violence is one way to obtain a restraining order, it is not the only one. In California under the Domestic Violence Prevention Act and subsequent case law, all of the following are considered “abuse:”
Intentionally causing bodily injury
Recklessly causing bodily injury
Attempting to cause bodily injury
To cause a person to fear imminent serious bodily injury to that person
To cause a person to fear imminent serious bodily injury to another
Destroying Personal Property
Annoying phone calls
Contacting by mail or otherwise with intent to harass
“Disturbing the peace of another,”for example:
– Accessing, reading, and then disclosing confidential emails
– Repeated sexually suggestive emails/calls/texts and then showing up uninvited & refusing to leave
If the victim can “reasonably prove” the abuse as described above and it is necessary to “prevent a recurrence of domestic violence” and to ensure a “period of separation from the abuser and the victim,” the judge can issue a restraining order. [California Family Code Section 6300].
- “I have no proof of their violence against me.”
The final misconception that keeps victims of domestic violence from coming forward and seeking a restraining order against their spouse is that they believe that they need “proof” of the abuse in the form of pictures or recordings of the abuse. What they do not know is that the judge will consider any sort of relevant evidence that is available. This means that the testimony of the victim describing the incidents of abuse can be enough, by itself to prove that an act of abuse occurred, and therefore that a restraining order should be issued. Of course, additional forms of evidence can be extremely helpful and persuasive in substantiating a victim’s testimony, but a victim should not shy away from getting the help that they need in the form of a restraining order because they think they need “proof” other than their own statements and recollection of the abuse.
In summary, many of the misconceptions keeping married victims of domestic violence from getting a restraining order and out of an abusive relationship can actually be addressed in a California Domestic Violence Restraining Order. Victims should always contact the police if it safe to do so and seek the advice of a local knowledgeable family law attorney to explore their options.
* Please note that the various orders described above are discretionary, will be issued based on the particular facts and circumstances of each case, and are not guaranteed. The facts listed above are provided for informational use only and are not to be construed as legal advice. Please contact an attorney for legal advice specific to your case.
[i]. Black, M.C., Basile, K.C., Breiding, M.J., Smith, S.G., Walters, M.L., Merrick, M.T., Chen, J., & Stevens, M.R. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention
. Black, M.C., Basile, K.C., Breiding, M.J., Smith, S.G., Walters, M.L., Merrick, M.T., Chen, J., & Stevens, M.R. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention