Critical Care In Divorce

Domestic Violence

Even the quickest and least complicated of divorces is at best a difficult and emotionally upsetting experience for everyone involved, divorce becomes even more traumatic when one of the parties are confronted with exigent circumstances, such as domestic violence, kidnapping, or bankruptcy. However, steps to deal with each of these issues can be incorporated into the divorce decree to minimize the possibility of their occurrence.

For a woman involved in an abusive relationship, the most dangerous time is when she attempts to leave. In that regard, filing for divorce can be a terrifying prospect, especially when one has been the target of threats (often regarding the abuser’s intent to kill her or the kidnap her children should she attempt to leave) and violent abuse. In situations where a domestic violence victim, male or female, wishes to file for a divorce, it is often helpful to file a petition for divorce, an emergency petition for an order of protection, and an emergency petition for temporary custody of the parties’ children.

An emergency order of protection (sometimes referred to as a “restraining order” or “TRO”), whether civil or criminal in nature, functions to keep an abuser from abusing, contacting, and often even knowing the whereabouts of the victim. While an emergency order of protection is temporary in nature, it can be extended repeatedly throughout the course of the divorce and incorporated into the final divorce decree. In order to obtain an order of protection, a victim must usually appear before a judge (hopefully one properly trained in domestic violence issues) and explain why he or she is in danger of being further injured emotionally or physically, but the abuser. An order of protection can also keep the abuser away from the victim’s work, the homes of friends and family members of the victim, and even the parties’ children. The violation of an order of protection is usually a criminal act carrying the possibility of arrest and jail time.

Kidnapping

Threatening to kidnap the parties’ children is a common tactic to gain leverage in a custody battle. Once a party has made a threat to take the children (even if the threat is veiled or vague), the other parent generally has grounds to obtain an order of protection. An order of protection can name the children as protected parties and prohibit the threatening parent from removing the children from the physical possession of the designated custodial parent or designated caregiver (such as a babysitter, grandparent, or daycare provider). Moreover, an order of protection can order that the abuser pay child support, leave the marital home, and not have any contact with the children.

In the event that a parent threatens to remove the children from the United States, a court can order that the children’s passports be surrendered and held by a court official or one of the parties’ attorneys until further order. The U.S. State Department also maintains a “watch list,” which prevents parents with nefarious intentions from obtaining passports for the minor children without court permission. The State Department also works in conjunction with other governments to recover abducted children and return them to their custodial parent under the terms of the Hague Convention.

Bankruptcy

When a party files for bankruptcy prior to a divorce, their spouse may be liable to their creditors for debts that occurred during the marriage. Bankruptcy filed before a divorce affects both parties in that it reduces the value of the total marital estate, leaving each party with less property as his and her share.

 However, when a party files for bankruptcy after a temporary child or spousal order or final divorce decree has been entered, the debtor must usually abide by his obligations under the terms of the divorce.  A domestic support or other order is generally not dischargeable in bankruptcy, meaning that the bankruptcy judge will not release the debtor from his or her financial obligations to their former spouse.


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