Domestic violence is a problem that impacts thousands of people each year in the United States. Violence in the home between family members, partners, spouses, and others can be extremely dangerous for victims and potential victims. Remember that children are often either near a victim of domestic violence or are themselves victims of acts of abuse at the hands of a family member. Adult victims of domestic violence often suffer harms that are both mental and physical.
A factor that I think bears mentioning is that throughout the pandemic, advocates for domestic violence victims have raised red flags about how to stay home orders, lockdowns, the closure of businesses, and social distancing mandates, in general, have contributed to increases in the rate and occurrence of domestic violence. This stands to reason. Many of us have been limited in how frequently we can leave our homes and go about our lives as we had pre-pandemic. The increased stress that we have encountered has seemingly led to an increase in the rate of domestic violence that we have been experiencing in this country.
Most frequently, we consider the victim’s perspective of domestic violence both in our culture and here on the blog for the Law Office of Bryan Fagan. This is well justified given the horrendous nature of domestic violence and its impacts on victims and their family members. However, in today’s blog post, I would like to approach this topic from a different vantage point. Suppose there is a victim of domestic violence. In that case, at least one person has either committed an act of family violence or has been accused of having committed an act of family violence.
If you are in a position where you are going through a child custody or divorce case and are simultaneously having allegations made against you regarding the commission of domestic or family violence, then I would like to share with you our perspective on how to combat those allegations if you have been falsely accused. While it is indeed frightening to think about having these sorts of claims made against you, it is not something that you should back down from or do nothing about.
Instead, you are in a position where you not only can do something about those allegations, but you absolutely should do something about them. Like anything else in life, letting a problem fester typically does nothing to solve the issue. Indeed, if you are being accused of committing an act of family violence, then this is not a problem that will go away on its own. You have to act to combat those allegations and ensure that they do not play a role in your divorce or child custody case. The first step in that process is to consider hiring an experienced family law attorney to walk with you through this process.
An attorney’s importance is magnified in situations involving domestic violence.
It is always a good idea for you to consider hiring an experienced family law attorney for your divorce or child custody case. Indeed, even if you ultimately decide not to hire an attorney, given the subject some thought and then performing some critical analysis one way or another is an excellent exercise to engage in. That way, you can at least think through why you may benefit from having an attorney and why hiring an attorney may not make sense for your particular case. You may even choose to interview a handful of attorneys to gain their perspective and real-world know-how regarding this subject.
There are limited situations where I would not immediately recommend that you hire an attorney for yourself for a family law case. If you are involved in a divorce case where you have little to no property and have no children, then you may consider handling your divorce without an attorney. Of course, there are a near-limitless number of circumstances that may come into play where even if you find yourself in one of these scenarios; you may still want to hire an attorney. But generally speaking, divorce cases where you have no kids and have no property are relatively low risk for you- everything else being equal.
In just about every other type of family law case, you should consider hiring an attorney. The lawyer you hire should be a family law attorney who practices in family law. Many attorneys out there will tell you that they are qualified to represent you in a divorce or child custody case. However, you need to perform the leg work to determine whether the attorney you are meeting with or considering hiring is ready to represent you diligently and competently.
In even “routine” or rather a mundane family law cases, there are always issues that arise that can cause problems for you. Life, as we all know, is unpredictable. What looked to be a simple case at the beginning developed qualities that made it more complicated. So, even if you thought you didn’t need an attorney at the beginning of your case, it is possible that your case could develop to the point where having an attorney becomes essential. You need to be able to distinguish between these two types of circumstances. If you find yourself having trouble doing so, this is probably a sign that you need an attorney!
How to defend yourself against accusations of domestic violence
Family law cases are incredibly fact-dependent. This means that individual circumstances within your case could wind up making a significant impact on your case as a whole. When we talk about domestic violence, that is a subject that can potentially impact both sides of a divorce case. Being credibly accused of domestic violence would likely affect the degree to which you can spend time with your children. In addition, you would probably have restricted decision-making capabilities for your kids, as well.
Additionally, domestic violence can be listed as grounds for your divorce. In Texas, you can get divorced on a no-fault basis. This means that you do not have to allege that any particular reason led to your seeking a divorce. Instead, the divorce can be granted for irreconcilable differences or discord/conflict in personalities. This makes it relatively easier to get divorced compared to the “old days” when you would have to specify fault grounds in your petition for divorce. If sufficient grounds for divorce could not be proven, you were not able to get divorced. Texas moved to allow no-fault grounds for divorce along with every other state in the country decades ago.
With that said, it is still possible to get divorced based on specific fault grounds for divorce. Adultery, mental incapacity, impotence, financial wrongdoing, and domestic violence are among the fault grounds in Texas that can be alleged and proven. You may be wondering- if you can get divorced for no reason in particular, then what are the benefits of establishing a specific ground of fault?
Well, specifying a fault ground for divorce can allow you to receive a disproportionate share of your community property when it is divided in a divorce. It is presumed that all property in existence at the time of your divorce is community-owned. This means that you and your spouse both own the property. It doesn’t matter whose income was utilized to purchase the property. Income earned during your marriage, with few exceptions, is presumed to be community property.
So, receiving a disproportionate share of your community estate would be a tremendous advantage. Otherwise, judges tend to award property in divorce trials in a somewhat equitable fashion. In other words- the judge in your case would be likely to split the property down the middle absent other circumstances. For this reason, being in a position to be able to prove a fault ground for divorce can be a significant factor in a divorce case. Here are some ideas of mine on how to defend yourself if accused of domestic violence.
Were you defending yourself?
Sometimes you may be able to argue that you were responding to a physical attack against you by your spouse. Domestic disputes are sometimes two-sided affairs. You may have been accused of domestic violence only after being assaulted or battered yourself. Verbal abuse, vulgar language, instigating behavior, and violence itself are all possible events that could have preceded the incident that ultimately brought the allegations against you. The specific circumstances that led to this incident need to be examined closely by you and your attorney to determine whether or not there will be any possible defenses that can be alleged.
The history of your relationship with your spouse may be put into the record as well. This is true, especially if the opposing attorney is attempting to allege that your actions have caused a great degree of distress for your child and your spouse. An ongoing threat of physical problems in your home evidences a state of mind; it can be argued that you cannot be trusted with decision-making for your child or their well-being. However, if you can display that you were acting in self-defense, then you have a chance to overcome this allegation. The difficulty is being able to produce evidence showing that self-defensive actions occurred.
What evidence can your spouse produce?
The other side of the above issue is arguing that your spouse cannot prove that you abused them. Like many issues in a divorce, your spouse may be basing their allegations on their word versus theirs. In some instances, your spouse may be encouraged by their attorney to act offensively at the beginning of a divorce to get you on your heels. You may react defensively and then concede points to them early and often. Their bluff may gain them points within the divorce.
Physical evidence would be the most straightforward kind of evidence for your spouse to produce. Bruising, hospital records, video evidence, or voice recordings are critical when making domestic abuse allegations. As we mentioned earlier, your spouse may be relying on circumstantial evidence or even potential testimony from favorable witnesses to try and piece together allegations of domestic violence. This is not the fairest way to play a case, but if your spouse has an avenue to make an argument like this, they may choose to drive their car right down the road.
It could be critical for you to show that they have made allegations like this before and that they have all been unfounded. You may not be in a position to be able to do this, but you can begin to poke holes in your spouse’s arguments by requesting evidence to be produced during the discovery phase of the case. This may allow you to understand what evidence they intend to use against you later on in a case.
You didn’t do anything wrong.
Did you commit an act of domestic violence against your spouse? This is the ultimate question that a family court judge would be most concerned with. Again, these acts of domestic violence could display an inability to act responsibly, make decisions in general care for your family. This will impact childcare city determinations; he may even determine whether or not supervised visitation is necessary between you and your children, at least for some time.
With that being said, being innocent of the allegations made against you is probably the most critical defense they could provide. Mitigating circumstances can only get you so far. However, being able to tell a judge or produce evidence that you did not commit these alleged acts can be worth their weight in gold. That may require you to have eyewitness testimony directly contradicting the potential argument of your spouse. This can become problematic as some people may be unwilling she testified against your spouse if she is a close friend or family member.
To be able to counter arguments of domestic violence, you must be prepared
above all else, you must have strategies in place to counter arguments of domestic violence in your family law case. The fact that your spouse even made allegations against you can tend to linger within a family law case to the point where yours becomes a domestic violence case when that is not fair. By providing evidence to the contrary within the case early and often, you may be able to beat your spouse to the punch when it comes to making these types of arguments.
However, as we talked about at the beginning of this blog post, this type of planning typically requires these systems of an attorney. No matter how baseless, domestic violence allegations are still severe and must be combated by you with diligence and intentionality. An inexperienced family law attorney will have encountered circumstances like this previously and will be prepared to assist you in preparing a defense given the circumstances of your case.
While there is no guarantee, they have an attorney who will allow you to succeed in this regard; you can counter the arguments better. We have already seen how these types of allegations can impact the entirety of your case. It is simply too much of a risk for you to go without an attorney in the case where domestic violence is at issue.
The other issue that I think bears mentioning when we are talking about domestic violence is that it would be understandable for you not to be all that excited about sharing information like this with your attorney. Even if you did not commit the alleged acts, even sharing with your attorney that this kind of allegation may be coming at some point could be enough to keep you quiet.
However, above all else, you need to be honest with your attorney. Your lawyer depends on you to provide them with information even when it does not put you in the best light. It’s sort of like when you were a kid, and you got yourself into trouble. If he didn’t tell an adult about your situation, there is no way that they could help you. Your attorney plays a similar role in a case involving domestic violence. They can’t help you if they don’t know that you’re in trouble. Eventually, this information will come to light. Whether or not it is sooner rather than later depends on how willing you are to share information with your lawyer.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.
from Texas Bar Today https://ift.tt/3nXbWp1
via Abogado Aly Website
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