In New York, a person can get a “no-fault” divorce, meaning they don’t need to provide a reason for the dissolution of the marriage. However, it is possible to file for a fault-based divorce, depending on the circumstances. If your spouse is emotionally, verbally, or physically abusing you, you might have grounds for a divorce based on “cruel and inhuman” treatment. Spousal abuse can affect divorce terms, including child custody arrangements. Furthermore, if you are experiencing spousal abuse, you may have reason to seek a protective order to keep yourself and your children safe.
The New York City divorce attorneys at The Mandel Law Firm have extensive experience helping people navigate the divorce process while protecting them from abusive spouses. Keep reading to learn more about how spousal abuse can affect a New York divorce, how to obtain a protective order against your spouse, and how a trusted divorce attorney could help you.
How Spousal Abuse Effects a New York Divorce
Under New York law, spouses can seek a no-fault divorce if the marriage “has broken down irretrievably” for six months or more. However, a spouse seeking a fault-based divorce (or “plaintiff”) may do so on one of the following grounds:
- “Cruel and inhuman treatment” that endangers the physical or mental well-being of the plaintiff
- Abandonment of the plaintiff for one year or more
- Imprisonment of the defendant for three or more consecutive years
If your spouse is abusing you, you could file for a fault-based divorce on the grounds of cruel and inhuman treatment. However, remember that a plaintiff seeking a fault-based divorce must generally prove their abuse claims. Thus, a trusted divorce attorney is crucial to building a robust fault-based divorce case.
Under New York law, a judge must consider the effect of domestic violence when determining a child custody arrangement. Spousal abuse is one of many factors that a judge will look at to decide what is in the child’s best interests. Keep in mind that claims of spousal abuse must be proven by a “preponderance of the evidence,” which means the evidence shows that it is more likely than not that the abuse occurred.
Obtaining a Protective Order Against an Abusive Spouse
If a spouse abuses you, you should not have to wait for your divorce to be finalized to get away from your abuser. You might be able to secure an order of protection against your spouse from the family court.
According to the New York Office for the Prevention of Domestic Violence, there are two types of protective orders. Full or “stay-away” orders require the parties involved to stay away from each other and have no contact directly or through a third party. Limited orders, sometimes called “refrain from” orders, allow the parties involved to contact each other but prohibit the abuser from committing harmful acts. An order of protection can also grant the petitioner child custody and require the abuser to pay child or spousal support.
To obtain a protective order against an abusive spouse, you can file a Family Offense Petition with the family court in your county. Once you submit the petition, you’ll have a hearing before a judge, who will decide whether to grant a temporary protective order and schedule a court date to decide whether the order should remain in place. A temporary order of protection will last until the next court date but can be extended for several years, depending on the circumstances.
Our New York Divorce Attorneys Are Ready to Help You
The New York divorce and family law attorneys at The Mandel Law Firm can help you through the divorce process and make sure you’re protected from an abusive spouse. Call The Mandel Law Firm today or fill out our contact form for a consultation with one of our trusted lawyers.