How Does a Florida Domestic Violence Arrest Impact My Pending Divorce?

Allegations of Florida domestic violence have the potential to turn your life upside down. If there’s a divorce pending, expect that impact to be even more outsized.

Family law judges start out with the presumption that all property/debts the couple shares should be equitably split. There’s also the presumption that both parents generally have equal rights to shared custody, decision-making, and leisure time with their kids. A domestic violence accusation can turn all that on its head.

What’s more, domestic violence allegations don’t have to be proven beyond a reasonable doubt in family court (as they do in criminal court) to impact the outcome of a pending matter. The court is going to prioritize safety of vulnerable parties (especially the kids), and that abusers aren’t able to use their power/fear/coercion to strong-arm a greater share of the marital pie than they should get.

Yes: The criminal domestic violence case is one thing, and the divorce proceeding in civil court is another. These are two entirely separate legal matters.

However, that doesn’t necessarily mean one has no impact on the other.

Florida is a no-fault state when it comes to divorce. That means it doesn’t matter if there was abuse - or adultery or abandonment. You don’t have to prove wrongdoing to get a divorce in Florida. All it takes is citing the vague “irreconcilable differences.”

But simply obtaining a divorce isn’t the only thing at stake. Obtaining favorable rulings on matters of alimony, child support, child custody, parenting time, the terms & conditions of co-parenting - those all matter too. A domestic violence arrest or conviction can absolutely influence how the courts approach and resolve those matters.

Courts can decide that based on a domestic violence accusation, arrest or conviction, to:

• Deny custody.
• Limit parenting time.
• Restrict parenting time to supervised conditions.
• Require special pickup/dropoff procedures.
• Impose/enforce a no-contact order.

These can all be imposed even when there’s no indication the child was directly harmed or witnessed any kind of abuse.

Domestic violence injunctions may also be separate matters, though they too can influence the family court’s decisions. They can even be cited as the basis to reopen a closed family law matter (such as custody or parenting time) and argue for modification based on a significant change in circumstances.

It’s very likely that if you are accused of domestic violence, your spouse’s family law attorney will use that to their advantage in seeking an upper hand with certain issues. They have a decent shot at prevailing in their efforts too, thanks to the rebuttable presumption that an act of domestic violence creates in a family law case.

In civil law, a rebuttable presumption is a type of assumption that is made by the court that is taken to be true unless it is proven otherwise.

In Florida, F.S. 61.13 establishes a rebuttable presumption against granting child custody to someone convicted of a domestic violence offense.

Child custody and parenting time decisions are always based on the court considering the question, “What’s in the best interests of the child?” A rebuttable presumption in this case presumes that it is not in the best interests of the child to be in the custody of someone who has committed domestic violence - particularly if that offense was a third-degree felony or higher.

That doesn’t mean a person accused is guaranteed to lose custody. They can always rebut that presumption - but it’s likely to be an uphill battle.

Overcoming this rebuttable presumption may be easier if:

• They were never convicted of the offense.
• It was a low-level domestic violence offense.
• The victim was not seriously hurt.
• The incident involved mutual combat.
• The incident occurred a long time ago.
• There has not been a pattern of domestic violence incidents.
• The child was not present or aware of what happened.

Courts will take all these factors into consideration when deciding how relevant the domestic violence issue is on all other matters.

Child custody isn’t the only divorce-related issue that might be influenced by a Florida domestic violence arrest.

For example, allegations of domestic violence can influence the court’s decisions on equitable distribution. In Florida, marital property is divided based on what is deemed the most fair and equitable (not necessarily a 50-50 split). An act or acts of domestic violence can swing the pendulum more in favor of the victimized spouse. State appellate and supreme courts across the country have for years consistently held that trial courts awarding an outsized share of marital property to abused spouses weren’t acting outside the bounds of the law.

Some courts have held that domestic abuse and harassment can fall under the umbrella of “economic misconduct.” That is, apart from any moral issue, abuse can increase medical bills, reduce the victims’ ability to work, and result in the unreasonable depletion of marital assets.

Similar arguments can be made with respect to findings of alimony and spousal support. If one’s future medical bills and job prospects have been impacted by ongoing physical, mental, emotional, and psychological impacts of domestic violence, a strong argument for awarding extended alimony could be made.

While these issues are separate and distinct from the criminal case, the sooner you connect with a good criminal defense lawyer, the less likely it is that you’ll be unwittingly providing evidence that can be used against you in both matters.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.