The King's Gardeners Ministries
Reverend S. L. Gardner
Spokane Valley, Washington U.S.
- The Issue of Abuse -
Recognizing Abuse in A Secular Divorce
by Laura Johnson
Abuse isn't limited to
acts of physical battery and domestic violence. It can be emotional or psychological,
too. The methods used by an abuser can be very subtle or extremely direct.
Abusers can be male, female and even children.
When a divorce involves
the ending of a marriage in which abuse is a facet of the family dynamics,
divorce lawyers and judges have difficulty in knowing just how to deal with
it, unless it is physical abuse or the threat of physical abuse that puts
a spouse or child in immediate danger or fear of harm. There is legal authority
for how they must deal with domestic violence, physical abuse, harassment
or stalking that puts a person in fear of his or her safety.
Their difficulty arises,
not from a failure to acknowledge and appreciate that an act of emotional
or psychological abuse or an isolated act of physical abuse has occurred,
but from several other factors. First and foremost is that divorce lawyers
and family court judges must build a protective shell around their emotions
and mind to enable them to do their jobs. Without the shell, they are too
emotionally involved and their logical thought processes are hindered. They
have to be very pragmatic and realistic about what effect, if any, the abuse
might have on the final outcome of a divorce. The shell is also necessary
for the lawyers and judges to maintain their own mental health.
I have heard judges and
lawyers alike make the statement, "My job isn't to counsel this couple
on how to get along or on what went wrong in their marriage. My job is to
get them legally divorced, split their assets and debts, get the children
taken care of, and provide a number for support."
That statement is both
right and wrong. At times, it appears as being very cold and inhumane. Sometimes
it's nothing more than a cop-out to avoid dealing with a very distressing
family situation. Sometimes it's a result of being jaded from hearing too
many sad stories. Sometimes it's a matter of a lawyer or judge hearing about
abuse, mentally comparing it to another story of greater magnitude, and then
discounting it because it falls short of the other family's situation.
When a lawyer learns about
abuse from a client, the lawyer has to make a decision about just how the
abuse could be used in negotiations or trial.
" If the law permits, does the abuse rise to a level that could cause a judge to make a lop-sided financial decision, either in support or the division of property?
" Is the abuse recent enough to make any difference?
" Is there a long
history of continued abuse or is it an isolated, one-time incident or is there
a history of abuse in the past, but none recently?
" Has it had a long
term effect on the victim and/or the children? Will a physician or mental
health professional be able to testify as to the effect?
" What is the history
of the actions taken by the victim after he or she has been abused?
" What has the abuser
done, if anything, to try to correct or control his or her abusive behavior?
What has the victim done, if anything, to try to get the abuser to stop or
to get help stopping?
" How relevant is the client's account of the abuse to the potential outcome of the divorce? Is there enough money or assets to make it worthwhile to pursue relief?
Is domestic violence and
the custody of children involved and if so, what is the victim's position
on the abuser's access to the children after the divorce?
" Is it a he-said/she-said
thing? Are there witnesses, medical records, police records, documents to
support the client's version of the abusive incidents?
" Will the abuser
care whether or not there is an exposure of the family's abusive relationship?
Just how much leverage does the threat of such exposure give the victim? If
exposed, what is the risk of the abuser escalating his or her abusive behavior?
Is the risk for further abuse worth it to the victim and/or the victim's family?
" Would it be better
for the victim to pursue relief for the abusive acts now--in the divorce action?
Or, would it be better for the victim to seek compensation and punitive damages
in a marital tort action? If so, what strategy must be used to preserve the
victim's right to pursue such an action?
Those are a lot of tough
questions, and it's just a few of those that a divorce lawyer examines before
making any final decisions on how to proceed with the presentation and handling
of abuse in a divorce. The answers are all a judgment call to be made by the
lawyer based upon his or her knowledge of the law, how each particular judge
thinks and rules on similar family situations, and on instinct and experience.
To follow up on the first
paragraph, here are a few examples of abuse that can occur in a relationship.
Some of them are what I classify as very subtle, mind-control abusive behaviors.
" Threatening to
destroy or harm something that is of value to the victim. Along with that
goes the act of causing harm or destruction.
" Threatening to
harm, or actually causing harm to, a person or pet loved by the victim.
" Unjust or excessive
punishment of a person (particularly a child) or pet loved by the victim.
Along with that comes the message, "I have to do this because of you."
and/or "You must watch and listen to what I am doing here."
" Forcing children to observe or participate in abusive behavior directed at a spouse. The message here is, "See what your *mommy or daddy* has done. *She or He* has been bad and has to be punished.
You have to hear this because I don't want you to do the same thing." Or,
"You have to help
me keep an eye on *mommy or daddy* and tell me if *she or he* does this again.
If you don't and I find out about it, you will be in trouble just like *she
or he* is."
" Unreasonably preventing
the victim from having access to money, people, pets, property or anything
else that the person values. For example, a wife telling her husband that
he can't have anything to do with his children from a prior marriage because
he shortchanges her and their children if he does. Another example would be
a husband putting a locking mechanism on the car so his wife couldn't drive
it anywhere without his permission.
" Persistent name-calling
and labeling with the intention of making someone feel inadequate, weak, bad,
or sick. An example would be of the husband who learned that his wife had
spoken with her high school boyfriend. He accused her of things much worse
than what she did -- talking to the guy on the telephone for 30 minutes. Her
husband kept after her for years, telling her that she was a tramp, unfaithful,
etc. -- you get the picture. After a while, she actually came to believe that
she had defiled their marriage, been unfaithful, and was unworthy to have
custody of their children or any financial benefit from the marriage.
" Obsessive control
over what someone else does. Something that I've seen a bit of is a spouse
who makes the other spouse account, in detail, for what he or she has done
every minute of every day. If the account is lacking in any way, the controlling
spouse can become angry, even more controlling, very aggressive, more manipulative,
or very secretive and suspicious of meaningless, trivial things.
" Taking away a person's
freedom to make decisions, go places, speak with people, have friends, etc.
The bottom line with some forms of abuse is that it's where persuasion crosses the line to coercion, force and destruction of self-esteem. With persuasion, someone can try to encourage you with words and actions to do what he or she wants. Persuasion doesn't make you feel afraid for your safety or for that of something or someone you love. Persuasion doesn't make you feel as if you are unworthy or bad. Persuasion doesn't make you believe that the only reply you can give is, "Yes, I'll do what you want...just don't....." Coercion and forcing others to bow to your will crosses the line into abusive behavior.
If a divorce lawyer or judge acts like he or she doesn't care about the abuse you may describe, that may not be the case. It could be that the abusive behavior you describe, when compared to the worst story they've heard that week and on a scale of 1-10 with 10 being the worst, doesn't come anywhere near a 10. Or, it could be that the law doesn't give the judge any way to give you any relief in the divorce. After all, a legal divorce action is nothing more than dividing the assets and debts, arranging for the support of children or a dependent spouse, and providing for where the children's primary residence will be and giving each parent the opportunity to have time with their children.
ShalomRefuge.com includes links to other websites on the Internet that are owned and operated by third parties. ShalomRefuge.com and The King's Gardeners Ministries is not responsible for and does not guarantee any of the content on any third-party site.
ShalomRefuge.com and The King's Gardeners Ministries is not responsible for opinions expressed on this website. Documents, articles and other materials are used by permission or are public domain.
The King's Gardeners Ministries is based in Washington State U.S. with all proper Corporate Reports on file with the Secretary of State for Washington U.S. Reverend S. L. Gardner President and CEC.
©@ TKGM 2003-2006