Abuse isn't limited to acts of physical battery and domestic violence. It can be emotional or psychological, too. The methods used by an abuser can be very subtle or extremely direct. Abusers can be male, female and even children. When a divorce involves the ending of a marriage where abuse is a facet of the family dynamics, divorce lawyers and judges have difficulty in knowing just how to deal with it, unless it is physical abuse or the threat of physical abuse that puts a spouse or child in immediate danger or fear of harm. There is legal authority for how they must deal with domestic violence, physical abuse, harassment or stalking that puts a person in fear of his or her safety.
Their difficulty arises, not from a failure to acknowledge and appreciate that an act of emotional or psychological abuse or an isolated act of physical abuse has occurred, but from several other factors. First and foremost is that divorce lawyers and family court judges must build a protective shell around their emotions and mind to enable them to do their jobs. Without the shell, they are too emotionally involved and their logical thought processes are hindered. They have to be very pragmatic and realistic about what effect, if any, the abuse might have on the final outcome of a divorce. The shell is also necessary for the lawyers and judges to maintain their own mental health.
I have heard judges and lawyers alike make the statement, "My job isn't to counsel this couple on how to get along or on what went wrong in their marriage. My job is to get them legally divorced, split their assets and debts, get the children taken care of, and provide a number for support."
That statement is both right and wrong. At times, it appears as being very cold and inhumane. Sometimes it's nothing more than a cop-out to avoid dealing with a very distressing family situation. Sometimes it's a result of being jaded from hearing too many sad stories. Sometimes it's a matter of a lawyer or judge hearing about abuse, mentally comparing it to another story of greater magnitude, and then discounting it because it falls short of the other family's situation.
When a lawyer learns about abuse from a client, the lawyer has to make a decision about just how the abuse could be used in negotiations or trial.
If the law permits, does the abuse rise to a level that could cause a judge to make a lop-sided financial decision, either in support or the division of property?
Is the abuse recent enough to make any difference?
Is there a long history of continued abuse or is it an isolated, one-time incident or is there a history of abuse in the past, but none recently? Has it had a long term effect on the victim and/or the children? Will a physician or mental health professional be able to testify as to the effect?
What is the history of the actions taken by the victim after he or she has been abused?
What has the abuser done, if anything, to try to correct or control his or her abusive behavior? What has the victim done, if anything, to try to get the abuser to stop or to get help stopping?
How relevant is the client's account of the abuse to the potential outcome of the divorce? Is there enough money or assets to make it worthwhile to pursue relief? Is domestic violence and the custody of children involved and if so, what is the victim's position on the abuser's access to the children after the divorce?
Is it a he-said/she-said thing? Are there witnesses, medical records, police records, documents to support the client's version of the abusive incidents?
Will the abuser care whether or not there is an exposure of the family's abusive relationship? Just how much leverage does the threat of such exposure give the victim? If exposed, what is the risk of the abuser escalating his or her abusive behavior? Is the risk for further abuse worth it to the victim and/or the victim's family?
Would it be better for the victim to pursue relief for the abusive acts now--in the divorce action? Or, would it be better for the victim to seek compensation and punitive damages in a marital tort action? If so, what strategy must be used to preserve the victim's right to pursue such an action?
Those are a lot of tough questions, and it's just a few of those that a divorce lawyer examines before making any final decisions on how to proceed with the presentation and handling of abuse in a divorce. The answers are all a judgment call to be made by the lawyer based upon his or her knowledge of the law, how each particular judge thinks and rules on similar family situations, and on instinct and experience.
To follow up on the first paragraph, here are a few examples of abuse that can occur in a relationship. Some of them are what I classify as very subtle, mind-control abusive behaviors.
Threatening to destroy or harm something that is of value to the victim. Along with that goes the act of causing harm or destruction.
Threatening to harm, or actually causing harm to, a person or pet loved by the victim.
Unjust or excessive punishment of a person (particularly a child) or pet loved by the victim. Along with that comes the message, "I have to do this because of you." and/or "You must watch and listen to what I am doing here."
Forcing children to observe or participate in abusive behavior directed at a spouse. The message here is, "See what your *mommy or daddy* has done. *She or He* has been bad and has to be punished. You have to hear this because I don't want you to do the same thing." Or, "You have to help me keep an eye on *mommy or daddy* and tell me if *she or he* does this again. If you don't and I find out about it, you will be in trouble just like *she or he* is."
Unreasonably preventing the victim from having access to money, people, pets, property or anything else that the person values. For example, a wife telling her husband that he can't have anything to do with his children from a prior marriage because he shortchanges her and their children if he does. Another example would be a husband putting a locking mechanism on the car so his wife couldn't drive it anywhere without his permission.
Persistent name-calling and labeling with the intention of making someone feel inadequate, weak, bad, or sick. An example would be of the husband who learned that his wife had spoken with her high school boyfriend. He accused her of things much worse than what she did--talking to the guy on the telephone for 30 minutes. Her husband kept after her for years, telling her that she was a tramp, unfaithful, etc.-- you get the picture. After a while, she actually came to believe that she had defiled their marriage, been unfaithful, and was unworthy to have custody of their children or any financial benefit from the marriage.
Obsessive control over what someone else does. Something that I've seen a bit of is a spouse who makes the other spouse account, in detail, for what he or she has done every minute of every day. If the account is lacking in any way, the controlling spouse can become angry, even more controlling, very aggressive, more manipulative, or very secretive and suspicious of meaningless, trivial things.
Taking away a person's freedom to make decisions, go places, speak with people, have friends.
The bottom line with some forms of abuse is that it's where persuasion crosses the line to coercion, force and destruction of self-esteem. With persuasion, someone can try to persuade you, with words and actions, to do what he or she wants. Persuasion doesn't make you feel afraid for your safety or for that of something or someone you love. Persuasion doesn't make you feel as if you are unworthy or bad. Persuasion doesn't make you believe that the only reply you can give is, "Yes, I'll do what you want...just don't....." Coercion and forcing others to bow to your will crosses the line to abuse.
If a divorce lawyer or judge acts like he or she doesn't care about the abuse you may describe, that may not be the case. It could be that the abusive behavior you describe, when compared to the worst story they've heard that week and on a scale of 1-10 with 10 being the worst, doesn't come anywhere near a 10. Or, it could be that the law doesn't give the judge any way to give you any relief in the divorce. After all, a legal divorce action is nothing more than dividing the assets and debts, arranging for the support of children or a dependent spouse, and providing for where the children's primary residence will be and giving each parent the opportunity to have time with their children.
1999 Laura Johnson
Author of Divorce Strategy: Tactics for a Civil Financial Divorce
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