Domestic Violence and Divorce

Domestic Violence, whether physical abuse or another form of harm, may lead to or stem from divorce proceedings. In Missouri, as in every state, courts must take allegations of domestic violence seriously. At the same time, courts must not assume that an allegation is true just because a party to divorce makes the allegation; rather, the party making the allegation must prove by a preponderance of the evidence (in a divorce case) that the incident did occur.

Domestic Violence (or Adult Abuse) is commonly associated with physical abuse, such as hitting or kicking a spouse. However, the term domestic violence may describe any action or pattern that affects a spouse’s health and safety. A spouse may be emotionally abusive by using threats or criticism to undermine an individual’s mental health. A spouse may also perpetrate domestic violence by isolating an individual from others or preventing them from accessing money for the necessities of life, like food and shelter. Stalking is a form of domestic abuse, and offenders may be prosecuted under Missouri’s anti-stalking laws as well as subject to restraining orders. Sexual abuse may arise in cases of forced sexual contact or control over reproductive strategies. A Missouri court can consider even isolated instances of violence to be domestic abuse but could also look to the “cycle of violence” to determine whether a spouse is experiencing domestic violence. Documenting any type of abuse is important, whether that abuse occurs before or after a divorce case has been filed. If it is safe to do so, a spouse experiencing domestic violence should prioritize moving to a location where their spouse cannot find them and then seek further protection from the Family Court.

A Restraining Order also known as an Order of Protection, is a civil order designed to protect individuals experiencing domestic violence from their abuser. An individual may usually receive a Temporary Restraining Order (TRO) from a Family Court judge in an abbreviated period and without a full hearing or confronting their alleged abuser in Court. Still, long-term Restraining Orders require a full hearing with both parties. Missouri courts must follow specific rules and statutes regarding domestic violence that arise during a divorce. Initial Restraining Orders are issued ex parte, meaning without a hearing. Because it was issued ex parte, it is only temporary, until the Court can provide a full hearing on the matter. In Missouri, temporary orders of protection expire within ten days unless a Court extends it because a hearing could not be readily scheduled. In a full hearing on an Order of Protection, both parties and perhaps other witnesses testify, and the lawyers for the spouses have a chance to cross-examine all witnesses. After the evidence, the Court has the option of dismissing the Order of Protection or entering a Full Order of Protection, which initially could last up to a year and may contain additional conditions to protect the complaining party.

Judges have discretion in how exactly a Restraining Order will protect a spouse experiencing domestic violence. The Order may impose such restrictions as refraining from physical or non-physical contact, keeping a certain distance from the spouse experiencing domestic violence or their workplace, school, or home, or ceasing to commit or threaten to commit domestic violence. If the spouses still live together, the Order will normally evict the alleged abuser. In most instances, the Order will prevent the alleged abuser from possessing or purchasing firearms. The Order may also protect minor children in danger of experiencing domestic violence.

Many people might be surprised to see how strict the adult abuse laws are in Missouri. One might be surprised to see that a strong verbal argument with swearing but no threats of violence could still result in an Order of Protection. The structure of the adult abuse law is to set a standard of conduct for spouses that keeps peace in the home and minimizes any chance of violence, whether physical or emotional.

For example, if a husband and wife were arguing, perhaps over the wife’s decision to get a divorce, and the husband accidentally pushed the wife aside and she contacted the window frame, that might not qualify for an Order of Protection (it likely would not meet the intent requirement for assault). On the other hand, if the husband meant to push the wife, out of anger or otherwise, that is the type of conduct adult abuse laws seek to prevent. 

In Missouri, in any divorce case courts must take evidence on allegations of domestic violence and make a finding as to whether such an incident occurred. If the court finds an incident did occur, the court must issue any orders necessary to protect the former spouse and/or any children. Other divorce considerations such as child custody and spousal support (maintenance) may be affected. However, courts vary in how heavily judges may weigh evidence of domestic violence in divorce decisions. 

A parent’s child custody rights may be reduced by a finding that domestic violence occurred, even if the domestic violence was not perpetrated on or near the child. However, most Missouri courts will not deny a parent visitation outright unless the domestic violence was directed specifically at the child. A parent concerned for their safety may ask the court to account for those concerns by including protections in the Parenting Plan, such as a public meeting place for exchanges or supervised visitation.

If parents haven’t been able to agree on a Parenting Plan as part of their divorce, a judge will have to decide for them. Under Missouri law, judges must start by assuming that it would be in the best interests of children for their parents to have equal (or about equal) parenting time unless a parent has proved otherwise.

Judges must consider certain factors when they’re deciding if a custody arrangement other than equal parenting time would be best for the kids. One of those factors is any history of abuse or domestic violence in the family. (See Mo. Rev. Stat. Section 452.375.2 (2023)).

A parent who doesn’t get physical custody (meaning the child will live with the other parent) is usually entitled to reasonable visitation but not if the judge finds that the visitation would endanger the child’s physical health or emotional development. The judge must consider evidence that the parent has engaged in domestic violence. (See Mo. Rev. Stat. Section 452.4001.1 (2023)).

Domestic violence may also affect spousal support (i.e., maintenance). Some judges may consider how domestic violence has affected the abused spouse’s ability to support themselves. In cases in which the abused spouse would otherwise be ordered to pay spousal maintenance to their abuser, Missouri courts allow a judge to excuse the abused spouse from paying maintenance. Also, a pattern or history of domestic abuse qualifies as marital misconduct that could support an unequal distribution of property in the divorce.

If you’re involved in a divorce and believe that your spouse has been abusive, you may be able to get legal help from one of these services in Missouri for domestic violence victims. For instance:

Should you need the assistance of an experienced divorce attorney in Creve Coeur and O’Fallon or have questions about your divorce situation, know that we are here to help and ready to discuss those questions with you.

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