It is crucial for someone in an abusive marriage to prioritize their safety when seeking divorce. Here is how to divorce an abusive spouse.

If an individual feels like it is safe to do so, it is encouraged that they seek divorce as soon as possible. It is understandable that a spouse may fear to seek divorce in fear of retaliation or worsening of abusive tendencies within the marriage. However, the more time there is for the other spouse to continue or increase their abuse. Divorcing promptly is a sure way to get any individual out of an abusive situation permanently.

What Qualifies as Abuse

The word abuse has a lot of severe connotations associated with it, and often a spouse may not think that the maltreatment they are receiving from their partner is enough to classify as abuse. However, abuse is defined broadly to encompass many forms of mistreatment and not just domestic violence as commonly perceived. Here are all of the ways “abuse” is defined by the state:

  • Bodily injury,
    Substantial reason to believe they are at risk of serious bodily injury,
  • Any of the following behaviors as defined by the Family Code Sections 6320:
    • Molesting
    • Attacking
    • Striking
    • Stalking
    • Threatening
    • Sexually assaulting,
    • Battering,
    • Credibly impersonating,
    • Falsely impersonating,
    • Harassing,
    • Telephoning, (making annoying telephone calls)
    • Destroying personal property
    • Causing bodily injury or reason to believe that they are at risk of bodily injury

Additionally, any of the following can be classified as abuse:

  • Isolating one from friends, relatives, or other relationships and support systems
  • Depriving one of basic necessities (food, water, housing, etc.)
  • Controlling or regulating the other party’s daily behavior, communication, finances, etc.
  • Compelling, intimidating, or threatening someone to engage in a behavior that they are able to decline

If you believe that you have been receiving any of the above listed mistreatment from your spouse, it more than likely will classify as abuse.

Related: 6 Telltale Signs of Abuse in a Relationship

Evaluate Your Safety Before Divorcing an Abusive Spouse

It is crucial for an individual to prioritize their safety and promptly separate themselves from an abusive spouse. However, there are a few factors that an individual should consider before they begin the process of divorce. The main focus of these considerations are to evaluate the amount of immediate danger that this individual is currently in, and find the appropriate plan of action for them. Here are some things an individual trying to leave an abusive marriage should consider before filing for divorce.

1. If your spouse is frequently violent and you have the capacity to do so, consider leaving the house.

Although the fear of taking a domestic abuse case to court can be overwhelming, it is vital that an individual who is in immediate danger of physical violence leaves the house. It is always more important to save yourself and get into a safe household than to risk the chance of getting severely injured, or worse. Every spouse should contact their local domestic violence agency once they are in a safe situation. There is also always a free and confidential support system at your disposal with domestic violence hotlines. Creating a safety plan and removing yourself from an abusive environment is the first step to considering divorce and other options.

2. If your spouse and you are in immediate danger, call the authorities for help.

The quickest response line will be 911 if a spouse needs immediate help. Do not hesitate to call 911 if your spouse is being violent or is making serious threats. Calling for help can stop the violence, or stop it from going any further. Additionally, there is always the option available to call the local domestic violence agency for those who wish to do so.

3. If you and/or your children are in immediate danger, consider obtaining an emergency protective order.

An emergency protective order (EPO) is issued when law enforcement asks a judge to grant one for the immediate safety of a victim of violence. The order mandates the abusive person to leave the home and stay away from the victim (and their children) for up to 7 days. This provides the victim an immediate reprieve, a safe home, and enough time to file a temporary restraining order. To learn more information about how to receive an emergency protective order, an individual can learn here.

Related: Restraining Order in California: What You Need to Know

4. If you feel it is applicable, think about filing criminal charges.

Criminal charges can be filed in addition to the divorce, because it is a separate case that will be seeking consequences for your abuser. Although this may seem daunting, it is important to know that the law is on your side when it comes to convicting your abuser. Crimes such as rape, sexual assault, domestic criminal trespassing, communication threats, stalking, harassment, and many other charges are convictable by state law. Every spouse should know that they have the right to file criminal charges against their abusive spouse before, during, and after filing for divorce.

Filing for Divorce Against an Abusive Spouse

After evaluating the situation and confirming that a spouse is in a safe environment, they can begin the divorce process. Although divorce is generally the same process, divorcing an abusive spouse may require some additional steps. Here is everything a spouse should do when beginning to divorce their abusive partner.

1. Know the resources for help at your disposal.

Whether it just be a few friends or family members, having a support system is going to be crucial through the overwhelming divorce process. Locate as few or as many individuals who you feel comfortable supporting you through this process and lean on them when necessary. Additionally, consider speaking to a counselor or therapist to help you navigate this situation. Your wellness and safety is the most important factor to consider throughout the divorce process and beyond.

2. Gather all the evidence that may be relevant to the divorce and a Domestic Violence Case if you are filing one.

There are many types of evidence that can be relevant in court to the divorce and/or domestic violence case. Any spouse can collect evidence by: taking photos of injuries or broken property, documenting evidence (such as text messages, emails, letters, or videos), and even collecting eyewitness testimonies for people who have seen or heard the abuse.

3. When you are in a long-term and safe environment, file for divorce.

The first step in filing for divorce is to ensure that you are filing in the right county, which can be found here. Learning how the divorce process works is really important before filing, and a step-by-step guide for how to file for divorce can be found here. Once you file, know that additional legal help is available to you by either hiring a lawyer or your local court’s family law facilitator.

Related: How to File for Divorce in California

Contact Us

If you or a loved one would like to know more about divorcing an abusive spouse, get your free consultation with one of our domestic violence attorneys today.