Divorce Dilemma: Stay or Leave

There is little question that many divorcing couples are faced with a tough choice…whether to leave the marital home.  Oftentimes in domestic violence scenarios, one has little choice.  What impact does this have on the outcome in a divorce?  Does the spouse who leaves forfeit marital equity as a matter of fact?  We will also consider not only domestic violence, but other related issues that commonly prompt one spouse to head for the door…adultery. 

One very common mistake we see is a spouse who alleges physical abuse but stays in the home anyway.  Usually this scenario occurs when someone has a small child and no real options on the table other than maintaining the status quo.  Verbal abuse and emotional damage that ensues are also commonly alleged.  They must be extreme and continuing or they are not legally actionable.  So, let’s take a look at two hypothetical scenarios regarding 1. Physical abuse, and 2. Verbal abuse.

Physical Abuse

Although men can certainly be victims of physical abuse, I am going to present the more common scenario in this hypothetical wherein a woman is the victim.  Too often, women are harmed by their spouse in moments of anger.  Although the #metoo movement certainly has some valid detractors, it also demonstrates that abuse, be it sexual or violent, is far too common.  There is also no question that some women will cry wolf in order to leave their husband for other reasons (found another lover for instance). 

As a society, the popularization of abuse claims is both a blessing and a curse.  As has been said, if it’s not paradoxical, it isn’t true.  Any woman who is being abused needs to have documented every instance, and that usually means doing the simple things first…calling the police.  When she fails to do so and then walks into chancery court and claims she was abused but stayed anyway, she has a tough hill to climb.  Photographic evidence is always helpful, but in the cases where she has close friends nearby, family who live close, the likelihood of her being impeached and found not credible increase significantly.  If she had no option but taking the young ones to the nearest Motel 6, she is on much stronger ground.  

In short, wives must always consider the totality of circumstances when alleging habitual cruelty when they remain silent.  If she was physically harmed multiple times in the marriage and failed to contact the police, she can often deflect any attempt to impeach by arguing that she suffers from Battered Wife Syndrome.  It is the only method that will have an effect on the court for the women that remained silent for too long and failed to leave their abusive spouse. 

Verbal Abuse

Accusations of verbal abuse occur in almost every divorce we have ever handled.  While yelling, screaming, and cursing can be a ground for divorce for habitual cruel and inhuman treatment (not inhumane, which is a slightly different term in the context).  Let’s look briefly at what would and would not constitute cruel and inhuman treatment.  It must also be noted that the word habitual is particularly important in divorce claims that allege solely verbal assaults. 

First, make no mistake that the verbal abuse must be extreme.  Getting into a couple of shouting matches will not suffice as a ground for divorce.  The tongue lashings must have persisted for a period of time that convinces the court you have been treated in a way that is inhuman.  In other words, you must have been treated with so little respect that no reasonable person could possibly endure the abuse.  This is what lawyers refer to as a subjective, rather than objective standard. 

It boils down to having to show the court that no reasonable person would be able to perform their marital duties under the circumstances.  If you can demonstrate that the hail of your spouse’s verbal bullets were both extreme AND pervasive, you have likely earned your way out of an unhappy marriage.  If you are seeing someone else (romantically of course) and simply want out, got into a few screaming contests, be forewarned:  you will not get a good result in court.

For anyone seeking a divorce, always remember that courts of equity are judging your every action and inaction of marital duties.  Even though only God can judge you in the end, make no mistake that you will be judged by a Chancellor in this lifetime.  At the end of the day, never forget that the person who is granted the divorce (and gets a better result) is the one who is less at fault. 

Although it is true that there is almost always blame to share, if you were decent and kind in marriage, the court will reward you.  The little things you were taught as a child can make a world of difference.  After all, what you really need to know most in life, and in divorce, you probably learned in kindergarten.

Tags: , , ,