False Domestic Abuse Claims and Divorce

Is It Time To Divorce
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Have you ever yelled at your spouse during a heated argument or touched your partner’s arm to emphasize a point when you're angry? If you’re like millions of couples, you probably have—and you probably thought it was no big deal. As long as your relationship remains strong, you're right.

But if that relationship is strained and/or you’re heading for divorce or separation, those simple actions could be deliberately misrepresented in court in a way that could result in your being removed from your home. You might be temporarily—or even permanently—prevented from seeing or spending time with your children.

Domestic Violence Allegations

Allegations of domestic violence or abuse that arise as part of divorce and separation proceedings are all too common. In some cases, these allegations are backed by facts or evidence, and family courts should consider them when making important custody and support decisions.

However, in many cases, one party (usually the one who is feeling most vindictive or who has tried to turn the children against the other parent), makes false and unsubstantiated claims of abuse as a way to game the system. The goal is to better their chances of getting the desired outcome, which is typically to get 100% physical and legal custody and keep the children from the other parent.

Under state and federal laws, including the Violence Against Women Act (VAWA), the term “abuse” goes beyond physical abuse and includes harassment, intimidation of a dependent, and generally interfering with someone’s personal liberty. Blocking the door during a heated argument and yelling or touching your spouse, even while you're saying, “Please stop. I love you!” may just land you in jail.

Getting an Order of Protection

Once an allegation of domestic abuse or violence has been made, a judge can issue an emergency order of protection. The legal standard for issuing such an order is surprisingly low, considering the impact it could have. An order of protection is usually a no-contact order, meaning that the person accused could be ordered by the court to leave the couple’s shared home and have no contact with the accuser or the children.

In the military, commissioned officers can issue a military protective order, which restrains service members. Those orders are generally effective only on military installations, so many spouses seek civilian orders of protection instead.

After an order of protection is issued, even an allegation of a violation of that order (for example, having a friend talk to your soon-to-be-ex about the petition) could land you in jail. You could be arrested on a criminal charge punishable by up to one year in jail, and fined. If you’re convicted of a Class A misdemeanor for domestic violence while serving in the military, you will no longer be able to bear arms and your career may well be over.

Orders of protection can be broader than just “stay away” orders. An order of protection can not only order the accused to stay away from a particular person or location, such as a residence, the accuser’s workplace, a child’s school, etc.. It may also forbid the accused of disposing of property or taking the children outside the court’s jurisdiction. These orders can be a very dangerous and wrongful tool if used improperly.

Impact of an Order of Protection

If you’re served with an order of protection, it’s essential that you get a lawyer immediately. The impact of an order of protection, if it's based on false allegations, can be broad-reaching in separation, divorce, or child custody proceedings.

In some instances, supervised visitation may be allowed in spite of an order of protection. But in most cases, the person facing the abuse allegations and the children are kept apart entirely, at least initially. This is where a false allegation could potentially be bootstrapped into a disastrous result in a custody case.

If the children are being legally prevented from spending time with one parent, then the other parent potentially has an unfair advantage in a contested custody proceeding. For example, the accuser would be able to claim that since the children have been with them 100% of the time, changing custody to 50/50, or even allowing visitation, would upset the children's established routines and shouldn’t be allowed.

If you have been accused of domestic violence in conjunction with any family court matter, you need the skill and experience of attorneys who have fought these battles many times before and have the ability and confidence to win no matter the odds.

Clearing Your Name

It's important to swiftly and effectively move to have an order of protection dismissed, vacated, or at least modified to allow extensive visitation in order to re-level the playing field in a contested custody proceeding. Clearing your name and putting your best arguments and evidence before the court is crucial in getting the outcome that is best for your family.

Keep in mind that to be accused of domestic violence, you don’t have to have committed an actual violent act. In many cases, claiming to be feeling threatened or unsafe is enough to start the process. If you find yourself facing such a crisis, don’t give up hope. An experienced lawyer can help you.

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  1. Authenticated U.S. Government Information. One Hundred Thirteenth Congress of the United States of America.