Chapter 6

Emergency: When You Fear Your Spouse

Suddenly you are in a panic. Maybe your spouse was serious when threatening to take your child and leave the state. What if you’re kicked out of your own home? Suppose all of the bank accounts are emptied? Your anxiety increases as you think about the bad stories you’ve heard about divorce. Facing an emergency situation in divorce, you may be paralyzed with fear and have no idea how to begin to protect yourself. No doubt you have countless worries about what your future holds.

Remember that you have overcome many challenges in your life before this moment. There are people willing to help you. Step-by-step, you will make it through this time as well.

When facing an emergency, do your best to focus on what to do in the immediate moment. Stay calm, obtain advice from your divorce lawyer, and make good decisions.

6.1 My Spouse Has Deserted Me, and I Don’t Have Enough Money to Pay My Bills and Buy Food. What Is My First Step?

Your first step is to call upon family and friends for temporary financial help until a support order can be entered. Next, seek legal advice at your earliest opportunity. The sooner you get legal counsel to advise you about your options, the better. Support can be ordered in Virginia by either your local juvenile and domestic relations district court or by your local circuit court. Your lawyer will identify and discuss options with you, and help you choose the course of action that is best for you given the facts of your case and the specific options available.

6.2 I’m Afraid My Abusive Spouse Will Try to Hurt Me or Our Children if I Say I Want a Divorce. What Can I Do to Protect Myself and My Children?

Develop a plan with your safety and that of your children as your highest priority. In addition to meeting with an attorney, develop a safety plan in the event you and your children need to escape your home.

Your risk of harm from an abusive spouse may increase when you leave with the children. For this reason, all actions must be taken with safety as the first concern.

Find a lawyer who understands domestic violence. Talk to your lawyer about the concerns for your safety and that of your children.

If domestic violence occurs, call 911 immediately. Based upon the situation, this may result in criminal charges being placed and a protective order being entered.

6.3 Will a Protective Order Keep Me Safe?

Unfortunately, there is no guarantee that a protective or- der will keep you safe. A protective order will help only if your spouse is concerned with abiding by the law. But in some cases a spouse is intent on doing harm without regard for the consequences. In that situation, a protective order will not help. Murder and suicide, though rare, do occur in connection with divorces. If you are in such a dangerous relationship, it is imperative that you think through carefully every step of the process to minimize the chance of a tragedy.

6.4 I Want to Give My Attorney All the Information Needed So My Children and I Are Safe From My Spouse. What Does This Include?

Provide your attorney with complete information about the history, background, nature, and evidence of the abuse you have suffered including:

• the types of abuse (for example, physical, sexual, verbal, financial, mental, emotional)
• the dates, time frames, or occasions

• the locations
• whether you were ever treated medically
• whether a 911 call was placed and any police reports made
• e-mails, letters, notes, or journal entries any photographs taken
• any witnesses to the abuse or evidence of the abuse
• any statements made by your spouse admitting the abuse
• alcohol or drug abuse
• the presence of guns or other weapons

The more complete the information you provide to your lawyer, the easier it will be for him or her to provide you with advice and to make a strong case for the protection of you and your children.

6.5 What Documents or Items Should I Give My Attorney to Help Prove the History of Domestic Violence by My Spouse?

The following may be useful exhibits if your case goes to court:

• photographs of injuries
• photographs of damaged property
• abusive or threatening notes, letters, texts, or e-mails
• abusive or threatening voice messages
• police reports
• medical records
• court records
• criminal records
• damaged property, such as torn clothing

Tell your attorney which of these you have or are able to obtain, and ask whether others can be acquired through a subpoena or other means.

6.6 I’m Not Ready to Hire a Lawyer for a Divorce, but I am Afraid My Spouse Is Going to Get Violent With My Children and Me in the Meantime. What Can I Do?

Once violence occurs and the police are called, you will be provided advice by the police, the prosecutor, or the victim coordinator regarding prosecution of your spouse and the option for a protective order. Unfortunately, there is little that can be done, from a legal perspective, in advance of violence, un- less there are specific and current threats of harm.

6.7 When can I obtain a restraining or protective order?

A protective or restraining order is a court order directing a person to not engage in certain behavior. Although the order can initially be obtained without notice to the other person, there is always a right to a hearing to determine whether a protective order or restraining order should remain in place.

You can consider obtaining a protective order if you are reasonably concerned about your safety or your children’s safety. If your spouse has attempted to cause or has caused you bodily injury, or has threatened to cause you bodily injury, you may qualify for a protective order. A general concern not based upon specific recent behavior or threats is not sufficient.

The violation of a protective order is a criminal offense which can result in immediate arrest.

6.8 My Spouse Has Been Harassing Me Since I Filed for Divorce. What Can I Do?

If your spouse is annoying, threatening, harassing, or intimidating you after your divorce complaint is filed, you should advise your lawyer, and he can discuss your concerns with the other attorney. In addition, protective language can be included in the temporary (pendente lite) order that can be entered early in your divorce case.

6.9 I’m Afraid My Spouse Is Going to Take All of the Money Out of the Bank Accounts and Leave Me With Nothing. What Can I Do?

Talk to your attorney immediately. There are several options to consider. First, you could seek to have the accounts frozen so that no funds can be removed without the written consent of both parties. Second, you could take one half of the funds and put them in an account in your name. Third, you could take all of the funds yourself. This third option is generally not recommended because of the negative consequences that will likely follow (neither the judge nor the other party will appreciate such aggressive behavior). Fourth, you could seek a court order that freezes certain marital accounts not needed for normal living expenses.

6.10 My Spouse Says That I am Crazy, That I am a Liar, and That No Judge Will Ever Believe Me if I Tell the Truth About the Abusive Behavior. What Can I Do if I Don’t Have Any Proof?

Most domestic violence is not witnessed by third parties. Often there is little physical evidence. Even without physical evidence, a judge can enter orders to protect you and your children if you give truthful testimony about your abuse which the judge finds believable. Your own testimony of abuse is evidence.

It is very common for persons who abuse others to claim that their victims are liars and to make statements intended to discourage disclosure of the abuse. This is yet another form of controlling behavior.

Your attorney’s skills and experience will be needed to assist you in providing effective testimony in the courtroom to establish your case. Let your lawyer know your concerns so that a strong case can be presented to the judge based upon your persuasive statements of your experience.

Make sure you avoid a situation in which the judge concludes that your allegations are not truthful (as opposed to the evidence being insufficient), as that conclusion regarding your credibility could harm your divorce case on other issues such as custody and visitation.

6.11 My Spouse Has Threatened to Take Our Child. What Should I Do to Make Sure My Child Is Not Abducted?

Talk to your lawyer to assess the risks in your particular case. Together you can determine whether statements by your spouse are threats intended to control or intimidate you, or whether legal action is needed to protect your child.

6.12 What Legal Steps Can Be Taken to Prevent My Spouse From Removing Our Child From the State?

If you are concerned about your child being removed from the state, ask your lawyer whether any of these options might be available in your case:

• A court order giving you immediate custody until a temporary custody hearing can be held
• A court order directing your spouse to turn over pass- ports for the child and your spouse to the court
• The posting of a bond prior to your spouse exercising parenting time
• Supervised visitation

Both state and federal laws are designed to provide protection from the removal of children from one state to another when a custody matter is brought, and to protect children from kidnapping. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was passed to ensure that the custody of children is decided in the state where they have been living most recently and where they have the strongest ties. The Parental Kidnapping Prevention Act (PKPA) makes it a federal crime for a parent to kidnap a child in violation of a valid custody order.

If you are concerned about your child being abducted, talk with your lawyer about all options available to you for your child’s protection. Be proactive on this issue if there is any chance the other parent will try to take your child abroad. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is an international treaty that may be of assistance in having a child returned. But some countries are not signatories (Japan and most Middle Eastern countries, for example) and some countries that have signed the treaty do not fully enforce its terms (including Brazil and Sweden). Accordingly, focus carefully on prevention. Consult with a divorce attorney capable of advising you on this specific issue.