Domestic violence is a serious issue that can significantly impact divorce proceedings in New York. When someone is experiencing abuse, it affects every part of their life, including their relationships, finances, and mental well-being. In a divorce, the presence of domestic violence changes the way courts view decisions like child custody, property division, and spousal support. Understanding how the law addresses domestic violence in divorce cases can be essential for anyone facing this difficult situation.
Richard H. Cole
Partner
Thomas F. Hewner
Partner
Donna L. Haslinger
Partner
Vivian P. Roche'
Partner
Keith R. Rosso
Attorney
Tasha D. Frazie
Attorney
New York laws are designed to provide protection for those who have experienced domestic violence, and courts take these matters very seriously. Individuals going through divorce proceedings involving domestic violence often need specific steps to safeguard themselves and their children while also navigating the legal process of ending a marriage. Knowing what to expect in such cases can make a challenging process more manageable and provide hope for a safer and more stable future. At, Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., we are here to guide you through the legal process and help you navigate the complexities of your case.
What Defines Domestic Violence in New York?
Domestic violence is defined as abusive behavior between people who share a domestic relationship, such as spouses, partners, family members, or individuals living together. It can include physical, emotional, sexual, and financial abuse, and any act meant to control, manipulate, or harm the other person is considered domestic violence. In New York, domestic violence does not only mean physical harm; it can also include threats, stalking, harassment, and intimidation. The goal of domestic violence is often to control or dominate the victim.
The state of New York takes allegations of domestic violence very seriously, especially when it is a factor in divorce proceedings. When someone brings up domestic violence in a divorce case, it can lead to changes in custody arrangements, property division, and even the divorce process itself. If someone is experiencing abuse, the court provides options to help them feel safe and secure, and the law can play a critical role in providing protection.
Filing for Divorce on Grounds of Domestic Violence
When someone is filing for divorce in New York, they can choose a “no-fault” divorce or a “fault-based” divorce. A no-fault divorce is when one partner claims the marriage has broken down for at least six months. However, if domestic violence is involved, the person filing for divorce might choose to file based on “cruel and inhuman treatment.” In a fault-based divorce, showing evidence of abuse is important, as it helps establish that the marriage should end due to the abusive actions of one partner.
Cruel and inhuman treatment is a ground for divorce under New York law. This ground includes any action that makes it unsafe or improper for one spouse to continue living with the other. When abuse has been ongoing, this reason can make it easier for the court to understand why the marriage needs to end. When using domestic violence as a ground for divorce, documentation and evidence of the abuse can be extremely important in proving the claim. This may include police reports, medical records, text messages, or eyewitness accounts that support the claim of abuse.
How Domestic Violence Influences Child Custody Decisions
In divorce cases involving children, one of the most crucial decisions the court makes is determining custody arrangements. When domestic violence is part of the marriage, it plays a significant role in custody decisions, as the court must always prioritize the safety and well-being of the children. Judges in New York are required to consider any history of domestic violence when making custody decisions. The main goal is to ensure that children are safe and not exposed to harm.
If the abusive spouse poses a risk to the children, the court may limit or restrict their visitation rights. For example, the court might allow only supervised visitation or, in extreme cases, deny visitation altogether if the parent’s presence endangers the children. The court may also grant full custody to the non-abusive parent to provide a stable and safe environment for the children. In these cases, the court aims to protect the children from trauma and maintain a safe, supportive environment.
Even if the abusive behavior was only directed toward the spouse and not the children, the court considers that abusive behavior can indirectly harm the children. Exposure to violence, even if they are not directly harmed, can have long-lasting effects on children. Therefore, when making custody decisions, New York courts carefully examine any history of domestic violence to ensure the children’s safety and well-being.
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Order of Protection in Divorce Proceedings
One of the ways New York law protects victims of domestic violence during divorce proceedings is through an order of protection. An order of protection, also known as a restraining order, is a court order that requires the abusive person to stay away from the victim. This legal tool can provide safety by prohibiting the abuser from contacting, approaching, or harassing the victim.
Orders of protection can be temporary or permanent. In some cases, an order of protection can include other conditions, such as requiring the abuser to move out of the shared home, surrender any firearms, or attend counseling sessions. Having an order of protection can be essential for victims of domestic violence, as it gives them a sense of safety while they go through the divorce process. If the order of protection is violated, the abuser can face criminal charges, which further emphasizes the protection for the victim.
Obtaining an order of protection is often one of the first steps for individuals in divorce proceedings involving domestic violence. It serves as both a physical and emotional barrier, helping victims feel secure enough to proceed with the legal process. Orders of protection are especially important when children are involved, as they help ensure that both the victim and the children are kept safe from potential harm.
Impact on Division of Property and Spousal Support
Domestic violence can also affect the financial aspects of a divorce, including the division of property and the awarding of spousal support, sometimes known as alimony. New York is an “equitable distribution” state, which means that the court divides marital property fairly, although not necessarily equally. In cases where domestic violence is a factor, the court may consider the abusive behavior when determining a fair distribution of property.
If one spouse has suffered from abuse, the court might award a larger share of the marital assets to the victim as a way to acknowledge the harm caused by the abusive spouse. Financial abuse, where one partner controls all the money and assets, is also a form of domestic violence. In cases of financial abuse, the court may take additional measures to ensure the victim has access to financial resources after the divorce.
Spousal support can also be influenced by domestic violence. Courts may order the abusive spouse to pay spousal support to help the victim regain financial stability. This is especially important if the victim was financially dependent on the abuser. By awarding spousal support, the court helps ensure that the victim can maintain a reasonable standard of living after the divorce. These financial considerations are an essential part of the healing process for victims of domestic violence, as they help provide independence and stability.
Preparing for a Divorce Involving Domestic Violence
Divorce is always a difficult process, but when domestic violence is involved, it can become even more complicated and emotional. For victims of abuse, gathering the right evidence and understanding the legal steps can be empowering and helpful. Preparing for a divorce in such cases often requires careful planning and support.
Victims of domestic violence should collect any evidence that documents the abuse, such as police reports, medical records, emails, and text messages. Having this evidence can strengthen their case in court and help them achieve a fair outcome. Speaking with a counselor or therapist can also be beneficial, as dealing with the trauma of abuse while going through a divorce can be overwhelming. Mental health support can provide a safe space to process emotions and begin healing.
Legal assistance is also crucial. Working with an attorney who understands domestic violence can make a significant difference in the outcome of the case. An attorney can help victims navigate the complex legal system, file for an order of protection, and present evidence to the court. This guidance can provide both emotional and legal support, ensuring that the victim’s rights are protected throughout the divorce process.
The Importance of Safety and Moving Forward
Ending a marriage where domestic violence has occurred is not just a legal decision but also a path to safety and healing. While the divorce process may be challenging, taking steps to ensure physical and emotional safety can make the journey forward more hopeful. Protecting oneself and any children involved is the top priority, and understanding how the law in New York addresses domestic violence in divorce cases can be a powerful tool in securing that protection.
Victims of domestic violence deserve a fresh start, free from fear and harm. Divorce is an important step toward creating a new life where they can find peace and independence. The legal process can support this transition by ensuring that victims are heard, protected, and given the resources they need to rebuild their lives.
If you are experiencing domestic violence and considering divorce, you do not have to go through it alone. The team at Cole, Sorrentino, Hurley, Hewner & Gambino, P.C. is here to provide the support and guidance you need. We understand how difficult it can be to take this step, and we are committed to protecting your rights and well-being every step of the way. Contact us today to learn how we can help you pursue a safer and more hopeful future.