Divorcing an Abusive Husband in California
How to divorce a physically and emotionally abusive husband and protect your children
Divorcing an abusive husband or wife is a challenge for which you have the courage
It requires sacrifice and courage.
It requires a willingness to navigate through a challenging divorce to better the victim's life and that of the children.
Divorcing an abusive husband (or wife) is especially difficult in long-term marriages. That is because the abusive husband or wife is often not only abusive toward the other spouse and the children but is also in control of the finances.
If you are a wife or mother (or husband or father) reading this article or know of one who needs help, we hope you will find the information here helpful and a good start.
This isn't legal advice. It's common sense and knowledge we have gained in our representation of abuse victims. We also inform you of parts of California family law that discuss domestic violence and restraining orders.
Although we wrote this article for abused wives (the great majority of abuse victims in a marriage are women), everything we wrote here equally applies to abused husbands.
If you have a divorce in Southern California, give our experienced family law attorneys a call.
Divorcing an abusive husband is rarely a simple process
Some people will tell you to just walk away from a bad situation. Until they have experienced what you are going through, that advice is easy to give but difficult to carry out. Our family law lawyers know what you are going through.
We have lived these cases with our clients and have gone up against physically and emotionally abusive husbands and the types of lawyers that represent them. To do this right requires planning, preparation and good legal representation.
Video on divorcing an abusive husband
Before you get into the article, below is a great introductory video you will enjoy.
What is abuse in a California domestic violence case?
The word "abuse" is defined broadly. It includes intentionally or recklessly causing or attempting to cause:
- bodily injury,
- sexual assault,
- placing a person in "reasonable apprehension" of imminent (immediate) serious bodily injury or
- engaging in any of the following behavior, as defined by Family Code section 6320.
Physical assault or injury is not necessary for there to be domestic violence. Family Code 6320 has four parts to it. The following is the version of the statute as of January 1, 2021.
Parts (a) through (d) of Family Code 6320 on "abuse"
Part (a) of Family Code 6320
"(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."
Part (b) of Family Code 6320
"(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal."
Part (c) of Family Code 6320
"(c) As used in this subdivision (a), "disturbing the peace of the other party" refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, internet-connected devices, or other electronic technologies. This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:..."
And the second aspect of part (c) which is the new coercive control section
"...(1) Isolating the other party from friends, relatives, or other sources of support.
(2) Depriving the other party of basic necessities.
(3) Controlling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services.
(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage."
Family Code 6320 also states its remedies are not limited
"(d) This section does not limit any remedies available under this act or any other provision of law."
Divorcing an abusive husband in a situational domestic violence case
Situational domestic violence is a term family law judges and lawyers use when referring to domestic violence that is part of an isolated incident as opposed to a pattern of abuse.
Situational domestic violence is often associated with external factors that cause an otherwise non-abusive husband to lash out at his wife or the children. Many different circumstances can cause this although the most common we had seen in divorce cases are:
- infidelity by the wife,
- infidelity by the husband that has been discovered,
- a husband addicted to drugs or suffering from alcohol abuse who has hit "bottom", and
- a wife's decision to leave the husband and file for divorce that angers the husband.
These are not the only times where situational domestic violence can occur, just the most common.
Situational domestic violence cannot be ignored. Many times, it can become a catalyst for ongoing physical or emotional abuse.
A serious situational domestic violence incident can also cause psychological trauma to the children.
The kids are not accustomed to seeing the father become violent and it is a difficult thing to process and understand.
Situational domestic violence is best handled by a domestic violence restraining order
Seeking a domestic violence restraining order whereby the wife, with the help of her lawyer, asks the court for both temporary and permanent restraining orders is the first step to separate the abusive spouse from the victim.
That separation is necessary for several reasons and include:
- protection of the wife,
- protection of the children,
- a cooling off period that often occurs in situational domestic violence cases by a physical separation, and
- immediate financial support in the form of spousal support and child support as well as payment of debts.
Such restraining orders are typically handled first on an emergency basis with or without notice and then an ultimate hearing that takes place about 3 weeks after the emergency orders.
Immediate action after a husband's situation domestic violence can protect a wife or mother from recurrence
Are courts more lenient in situational domestic violence cases?
While courts do take all domestic violence seriously, they may be more lenient in situational domestic violence cases. The Family Court in California may issue a restraining order for a period the judge believes is necessary for the victim's protection.
Situational domestic violence cases sometimes do not end up with a three or a five-year restraining order, although that depends heavily on how serious the domestic violence was. And by "serious" we refer to the nature and extent of the abuse, even if it was a one time incident.
If the incident was not one that resulted in physical injury to the wife or the kids, it is not uncommon for a family law judge to order a restraining order for a six-month to a three-year period instead of the traditional three-year to five-year period
Divorcing an abusive husband with a pattern of domestic violence
We've seen long-term abuse and domestic violence cases break up into the following historical categories:
The first is the worst. A lengthy history of domestic violence that has spanned many years or even over a decade and involves both physical abuse of the wife as well as, to a lesser or same extent, abuse of the children.
This domestic violence is often accompanied with threats, intimidation and deep underpinnings of hostility toward the wife and the children.
These types of abusive men have gained a psychological control over their wives to the extent the wives feel hopeless to escape their abusive relationship.
Divorcing an abusive husband with a history of abuse requires immediate action.
Divorcing an abusive husband with a history of physical and emotional abuse similar to the above often leads to immediate domestic violence restraining orders, especially if there are recent acts of abuse.
If seeking an immediate restraining order is not possible, court orders can still be sought that regulate and limit contact between the wife and a husband.
These include specific court orders about custody and visitation of the children to protect them including limiting visitation to monitored visitation. It also includes practical steps by moving out of the family residence and in with either family or alone, but most importantly away from the highly abusive husband.
Helpful Guides on Domestic Violence in Family Law Cases
Working up the courage to protect yourself against the abusive husband
In situations where the wife or mother is having trouble to develop the courage to protect herself and her children, we do our best to refer such clients to licensed therapists who can communicate with her and start the healing process.
This includes the empowerment necessary for a wife to face the abuser through the legal system. There are also hotlines available for domestic violence victims.
The second type of historical abuse we see is one that involves a long history but the acts are not as serious or consistent as the first scenario.
Typically, this type of domestic violence can go on for many years but there are also many years where there is not any domestic violence.
Instead, if the physical violence has subsided, emotional abuse, financial abuse or threats have replaced it.
Almost always, this second group of domestic violence is a result of a husband who has anger management issues and a very poor temper and impulse control but not so much as to lash out physically except under the most uncontrolled situations.
Wives who have been the subject this type of abuse sometimes explain their husband's conduct by downplaying it or claiming that it was never serious enough to take action.
In addition, some wives in such situations state that they remained in the relationship for the children and did not wish to seek a divorce or take any action against the husband while the children were still young.
We are not here to judge any of these opinions or lack of action.
Simply, when the abused wife is at a point that she needs to take action, the same options discussed above are available to her.
However, because the abuse described here is often not documented through photographs, police reports or witness testimony, the proof of the domestic violence in such situations that are more sporadic becomes more difficult.
Nevertheless, it is incumbent among the new spouse when she is ready to protect herself and her children to seek the advice of an experienced family law attorney in domestic violence matters.
Gathering Evidence in Support of a Domestic Violence Case Against an Abusive Husband
The evidence against an abusive husband falls into three major categories.
- The first is photographic which will include photos of injuries, broken property including typically holes in walls, shattered phones or similar items,
- Documentary evidence which typically includes text messages, emails or, on occasion, we have seen letters written by the abuse victim or the abuser to the other, and/or
- Eyewitness testimony of those who have seen the abuse or have heard the abuser admit it in conversation.
The more serious and long-lasting the abuse, the more likely there will be proof of it. California family law sometimes refers to "documented" domestic violence and unless there is a police call, arrest, prosecution or conviction, domestic violence is typically not as documented as a victimized wife would like when she seeks to divorce an abusive husband.
But what happens in a situation where the victim does not have any evidence? She has never taken photographs.
There has never been a single letter, text message or email. Nothing is documented and she never had the will or opportunity to contact the police and have the abusive husband arrested.
All is not lost. The one consistency with abusive husbands, and for that matter all abusive persons, is that they do not stop even when they should know better and even at the risk of harming themselves.
When the wife is ready to divorce an abusive husband, steps can be taken to document the past domestic violence even if it has not been previously documented. How? The answer depends in large part on the specific circumstances of the case.
However, we can review a case on its merits and lay out a plan for an abuse wife to document the domestic violence and gather proof of it.
We are the family law firm to call if you are divorcing an abusive spouse
If you are divorcing an abusive spouse (husband or wife), contact our family law firm.
Our family law firm has decades of combined experience representing victims and survivors of abuse.
We will evaluate your situation and tell you if the facts and law support a claim for a restraining order against your spouse and custody orders that protect your child or children from the abuser.
We have offices in Los Angeles, Orange County and San Diego. We are ready to help.