Arons & Solomon | December 8, 2020 | Divorce
There is no doubt that divorces are stressful. Next to the death of a spouse or a child, divorce can be one of the most stressful things a person can experience.
Divorce is filled with hurt and anger even in the most amicable situations. It is also a time of great uncertainty regarding the present and future. Divorces are about endings and it takes time for each partner in a divorce to weave another future.
Divorces are exponentially worse when emotional abuse is involved.
Emotionally Abusive Relationships and Divorce
There are many ways to abuse a spouse emotionally. For some partners, a pattern of emotional abuse may be limited to the period leading to the divorce and the divorce itself. For others, it is a pattern of behavior that is embedded in the relationship.
Imagine a divorce in which one of the partners is so angry and hurt that he or she intentionally engages in abusive actions and behaviors toward the other. This could include belittling the partner about their appearance. It could include yelling or screaming at the other on a consistent basis. It could include intentionally isolating the partner, keeping them from other support systems while engaging in continued verbal abuse of the partner. Emotional abuse can make the process much more stressful.
Now imagine having to settle all of the issues that divorce brings with such a partner. Issues such as property and liability division, child custody and child support, spousal support must all be agreed upon by the spouses in order for a divorce to be finalized.
When couples cannot agree, some courts will send the matter to mediation. Mediation is an informal process in which a trained mediator helps both sides come to an agreement on the issues. The mediator meets with both sides separately and then negotiates to move both sides closer to resolution.
When mediation cannot resolve all of a couple’s issues in the divorce, the court will send the matter to trial. Trials are stressful and expensive. But sometimes they are the only way to resolve issues. In a trial, both sides present evidence on the issues and the judge decides the issues.
When going into a divorce with such a partner, an experienced divorce attorney is imperative.
Let Your Attorney Know About the Abuse
All too often, a partner suffering emotional abuse at the hands of the other partner feels so much shame that they do not divulge the abuse. The victim just wants out whatever the cost. There are good reasons to tell your attorney about the abuse, however. There are things that your attorney can do to help.
Avenues of Relief Are Available
Emotional abuse is a type of domestic violence. Once you tell your attorney about the abuse, it is likely that your attorney will want you to chronicle the abuse. Emotional abuse can be difficult to prove as it does not leave physical bruising, but with consistent chronicling, it is easier to prove.
Your attorney may suggest that you keep records in a diary or journal of abusive contacts including telephone calls, texts, emails, and any physical appearance by the other partner. Witness testimony from others may be needed as well. Document everything you can.
Restraining Orders Can Help
Your attorney may suggest a restraining order prohibiting contact. If your evidence is sufficient, a court will likely issue a restraining order. Restraining orders prohibit contact which includes all of the normal avenues used by an abusive partner such as telephone calls, emails, and intrusive appearances by the partner at work. If the abusive partner violates the restraining order, be sure and note the violation and contact your attorney.
Judicial Discretion in Crafting Divorce Orders
New Jersey has both “fault” and “no-fault” rules when it comes to divorce. This means that neither side has to prove grounds for the divorce itself. However, a spouse can pursue a “fault” divorce in situations where “physical or mental cruelty” endangered their safety or health. In other words, emotional abuse could potentially be grounds for divorce.
Fault – in this case, emotional abuse – won’t be factored in when making determinations about things like property division. However, it can be very important when it comes to determining custody, visitation, and support.
When children are involved in a relationship where emotional abuse is present, a judge may be more careful about custody and visitation in order to better protect the children involved from the abusive parent. This may mean that the abused partner is made the custodial parent. This may mean that the abused parent is given sole custody of the children. This may mean that a judge will order supervised visitation of the children.
Depending on the length and severity of the emotional abuse, a judge may award spousal support if the judge feels that the abuse has interfered with the abused spouse’s ability to earn a living. Spousal support can be temporary. Some courts will award spousal support as a way to bridge the gap between the income of the family unit and establishing a new life after the marriage. Other times, spousal support may be permanent if the spouse lacks the ability to meet their basic financial needs after the marriage.
Intentional Infliction of Emotional Distress
In some cases, in which the abuse is severe and occurs over a protracted period of time, your attorney may suggest a separate lawsuit for intentional infliction of emotional distress (IIED).
Intentional infliction of emotional distress cases are brought when the abusive conduct is so severe and outrageous that it is beyond the bounds of human decency. The legal cause of action has four elements, all of which must be proven.
- Deliberate or reckless infliction of mental suffering or distress;
- Involving outrageous conduct;
- Which caused emotional distress; and
- The distress was severe.
These cases are hard to prove as the elements must be proven by an objective, reasonable person standard rather than by the victim’s subjective experience.
The handling of cases involving emotionally abusive partners is particularly important in divorce cases. There are things that victims can and should do. Never handle an abusive partner alone. A victimized partner may feel enormous shame which makes it difficult to divulge the abuse to their attorney. However, it is crucial to do so. Then steps can be taken to make the divorce process easier for the victim and any children involved.