The Impact of a Family Violence Finding on the Defendant in a Divorce: Navigating the Consequences
It is imperative to avoid the impact of a Family Violence Finding on a defendant in a criminal case. A Family Violence Finding adversely affects a person’s rights and can destroy their reputation and future prospects in many areas of life not the least of which occur during divorce proceedings.
In Texas, “Family Violence” means:
(1) an act by a family or household member against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) Abuse of a child by a family or household member toward a child of the family or household; or
(3) dating violence.
In a criminal case, if the court determines that a defendant is guilty of family violence, then the court is required to make an affirmative finding of that fact and enter the finding in the judgment of the case. This finding can have far-reaching consequences in family law proceedings.
Presumption of Guilt:
When a Criminal Court enters a Family Violence Finding, it triggers a cascading series of problems for the defendant. Regrettably, regardless of the actual facts, this finding significantly influences family law proceedings. In Family Court, its effects extend to critical decisions such as child custody, visitation rights, alimony, and the division of the marital estate. Defending these cases can become more complicated, especially when a strategic spouse masquerades as a victim and exploits the Family Violence Finding to their advantage. Remaining vigilant, defendants must not only defend against false criminal accusations but also expose these ulterior motives to the prosecutor or jury.
Child Custody and Visitation Rights:
In divorce cases involving children, one of the most crucial issues is child custody. A Family Violence Finding can profoundly influence the Family Court’s decisions, often resulting in limited or supervised visitation rights for the defendant. In fact, the presumption that the defendant poses a potential risk to the safety and well-being of the children can significantly impact their future relationship with their children and their ability to be involved in their upbringing.
Child Support:
Child support plays a crucial role in divorce cases where children are involved. In typical scenarios, child support is calculated as a percentage of the non-custodial parent’s earnings. However, a Family Violence Finding rebuts the presumption of joint managing conservatorship, leading to the defendant paying child support as a possessory conservator.
Division of Assets:
The impact of Family Violence Findings also extends to the division of marital assets. The court may take into account the defendant’s actions and impose financial penalties or a disproportionate distribution of the marital estate. The Victim may be awarded the home and the defendant may need to find other housing. Furthermore, the eligibility and duration of spousal maintenance, or alimony, may be affected, with a history or pattern of family violence influencing the court’s decision.
Alimony:
Spousal maintenance, also known as alimony, is another important consideration in divorce proceedings. Normally, the duration and amount of spousal maintenance is determined based on the length of the marriage. Trial courts are authorized to award spousal maintenance only if the parties meet certain eligibility requirements. When a defendant is convicted of family violence and the offense occurred within two years of the divorce or while the suit is pending, then victim is eligible for spousal maintenance. Once a court determines that a spouse is eligible for spousal maintenance a trial court may also consider any history or pattern of family violence in determining “the nature, amount, duration, and manner of periodic payments.”
Waiting Periods:
Typically, the court may not grant a divorce before the 60th day after the date the suit was filed. However, a waiting period is not required if the defendant has been convicted of an offense involving family violence against the petitioner or a member of the petitioner’s household.
Legal Consequences and Reputation:
Beyond the immediate repercussions in divorce proceedings, a Family Violence Finding carries long-term legal consequences
for the defendant. It can result in a criminal record, restraining orders, relinquishment of firearms, loss of employment, and mandatory counseling and anger management programs. For non-citizen defendants, such a finding may lead to deportation or denial of naturalization. These legal implications reverberate throughout the defendant’s life, affecting future employment prospects, personal relationships, and their overall reputation within the community.
Defense Strategies:
While the focus of family violence findings in divorce cases typically centers on the well-being and protection of the victim, it is important not to overlook the impact on the defendant. Defendants undergoing a divorce must be acutely aware of the consequences arising from a Family Violence Finding and its impact on litigation. Those accused of Family Violence must mount a robust defense to avoid collateral consequences. Collaborating closely with experienced legal counsel becomes pivotal in constructing a solid case, gathering evidence, and presenting a compelling argument that challenges the presumption of guilt.
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