Deciding to divorce your spouse is a difficult enough decision under any circumstances; however, when there has been domestic violence and you are afraid to leave, making the decision to do so can be terrifying. If you find yourself in such a situation it is imperative that you consult with an experienced divorce attorney. In the meantime, however, Dallas divorce lawyer Rita M. Boyd offers some insight into how you can protect yourself and your children from domestic violence during a divorce.
The Importance of Planning
Most victims of domestic violence have been living with fear and/or actual violence for some time before they decide to leave. The reasons people stay are complex and multi-faceted, but abusers typically use the threat of increased violence as one way to discourage their partner from leaving. Sadly, some abusers make good on those threats which makes the decision to file for a divorce even harder for the victim of domestic abuse. It also makes planning crucial when possible. The legal system can help but seeking advice and guidance from an attorney early in the process can be the key to getting that help.
Waiver of Waiting Period
One way the law can help you if you are the victim of domestic violence is by waiving the mandatory waiting period. Texas is one of many states that imposes a mandatory “cooling off” period as part of the divorce process. Normally, this means that a divorce cannot be finalized for at least 60 days after the petition is filed. For the victim of domestic violence, that 60-day period can be dangerous. With that in mind, the law provides for two exceptions to the mandatory waiting period:
- If your spouse has been convicted of or received deferred adjudication for a crime involving family violence against you or a member of your household, the 60-day waiting period is waived.
- If you have an active protective order or an active magistrate’s order for emergency protection against your spouse because of family violence during your marriage, the 60-day waiting period is waived.
Temporary Restraining Order
Another crucial way you can utilize the law to protect yourself and your children if you decide to leave an abusive spouse is by filing for a Temporary Restraining Order (TRO) when you file for divorce. In a divorce that does not include allegations of family violence it is customary to set the matter for a hearing at which temporary orders are entered regarding things such as child support and possession and access of the children. This hearing, however, may not take place for several weeks after the petition is filed. If you are afraid that your spouse may become violent or take other harmful action before a standard hearing date can be set, you can file for a TRO. A TRO is an emergency court order that orders a party not to take some particular action until a hearing can be held. The order is an “ex parte” order, meaning it is issued without the opposing party (your spouse) present. A TRO can include orders necessary to protect your property, your safety, or the safety of the children until a temporary orders hearing can be held. If the judge believes an emergency exists a TRO can even order a parent to stay away from a child until the hearing. If granted, a TRO is only good for 14 days or until your temporary orders hearing, whichever is sooner. At the hearing, your spouse will have the opportunity to be heard on the issues covered by the TRO. The judge may vacate the order entirely, keep it in place as originally written, or modify the order. It is important to note that while they cover some of the same legal issues, a TRO is not the same as a Protective Order. A Protective Order may be necessary in your case and, if so, can be part of the divorce process as well. Your attorney can help you decide if you need to seek a Protective Order and/or a TRO.
Contact a Dallas Divorce Lawyer
If you have additional questions or concerns about divorce in Texas, contact experienced Dallas divorce lawyer Rita M. Boyd to discuss your legal rights and options by calling 972-380-8000 to schedule your appointment today.