What Happens If Accusations Of Domestic Violence Are Made In A Contested Divorce?

Domestic violence accusations can affect a contested divorce in several different ways.

The first pertains to decisions about any children shared by the divorcing couple. Domestic violence is a specific statutory factor that can affect custody and visitation decisions. Depending on the type of abuse in question and your ability to prove it happened, domestic violence can be a factor in structuring both physical custody and visitation.

Beyond custody and visitation matters, domestic violence can also affect things like spousal maintenance and asset distribution. The argument often made in that context is the domestic violence affected or inhibited the survivor’s ability to earn income or go to school. A survivor could argue that the domestic violence perpetrated against them affected them so severely it impeded their ability to really apply themselves and reach their full potential. They might also argue the domestic violence impeded their ability to work or attend school. In those cases, the Courts can take domestic violence into consideration as a factor in their Decisions.

When clients of mine make this argument, I sometimes recommend they have “backup” from a certified mental health professional who can attest that the domestic violence occurred and how it affected the client in the ways s/he claims it did.

This has to do with the way things are proven in a legal context. Our goal is to prove the client was unable to work or go to school (or do either as well or as much as they may have otherwise) due to the domestic violence which was perpetrated against them by the other party. The client simply stating their “opinion” that it happened and it affected them in a certain way is usually inadmissible in terms of linking their inability to work/go to school with the other party’s acts of domestic violence.

In order for domestic violence to affect something like spousal maintenance or division of assets, we have to prove two elements:

1. That the other party perpetuated domestic violence against my client and that it made an impact on them psychologically/emotionally (or even physically); AND,
2. That the impact made by the other party’s domestic violence impacted my client’s ability to work, go to school, and/or develop themselves professionally.

To link up those two elements—at least in the pre-trial stages—one would benefit greatly from report by a mental health professional that corroborates the claims made by the survivor about the impact of the domestic violence on their ability to work/go to school. Without this type of corroboration, you only have testimony that the domestic violence occurred and it had a psychological/emotional/physical effect on the survivor (in his/her own opinion). You do not have solid proof that the domestic violence had an impact on the client’s ability to develop a career and support themselves financially.

Basically, if your aim is to have a domestic violence claim affect spousal maintenance/the division of assets, you should have corroboration from a mental health professional on-hand. If all you have is the survivor’s self-reported experience (without corroboration), you are unlikely to be successful in your argument.

In Contested Divorce Cases Where There Are Custody Disputes, What Happens To The Children During The Divorce Process?

In contested divorce cases where custody is being disputed, the Judge will usually look to maintain the status quo for the children. Matters like custody are decided primarily based on the best interest of the children, and maintaining the “status quo” (i.e., a situation as close as possible to the way things were before the divorce) is often considered to be in the best interest of the children.

If there is already an informally established schedule for the children, the access schedule and custody status will usually be modeled after that schedule for the duration of the divorce proceedings. In contested divorces involving contested custody, the Court does try to move the case toward a relatively quick custody trial, in which they can make an informed determination about what the access schedule should be on a permanent or semi-permanent basis.

Sometimes, though, the parties are not able to agree, and the Court is not able to hear the divorce case quickly enough. In those instances, either party can ask the Court to set an interim custody arrangement or visitation schedule, which will usually stand for the duration of the divorce proceedings.

For example, let’s say Party A and Party B have one child. They decide to physically separate, and the child remains in the family home with Party A. Party A says she is fine with Party B seeing the child once a week. Party B says that once a week is not acceptable, and instead says he wants custody of the child every other weekend, from Friday afternoon to Monday morning.

If Party A and Party B are not able to negotiate toward some kind of compromise or middle ground, then Party B—generally speaking—would be entitled to make an Application to a Judge (usually through an Order to Show Cause), asking that the Judge set an interim visitation schedule as enforced by the Court.

This would involve Party B providing an affidavit as to why he feels it is right and proper for the Court to grant him the relief (i.e., why he feels the Court should rule in favor of his proposed visitation schedule). Then, Party A would be able to voice her objections to the arguments made by Party B, and make her own arguments.

In some cases, this process will take the form of a “mini hearing”, in which the Court will hear from each party about their reasoning and will be able to subject both parties to cross-examination without having to conduct a full interim hearing. These “mini hearings” are sometimes used instead of full interim hearings because conducting full interim hearings for custody can be an incredibly involved process. They can take quite a long time, which ultimately may wind up defeating the purpose, and can be disruptive to the life of the child.

The Judge knows if custody is ultimately going to be contested during the divorce proceedings, then that process will just have to be repeated in the full trial. What’s more, during the full trial, both sides will actually have the ability to present their arguments fully. Each side will have their full repertoire of evidence, usually including home study reports, forensic psychological reports, and other arguments and pieces of evidence which were not included in interim hearing.

As such, if there is already an informal arrangement in place that more or less matches the pre-separation status quo for the child, Judges are sometimes cautious about establishing a different custody or visitation arrangement before the full arguments get made again during the divorce proceedings.

How Long Does A Contested Divorce Usually Take To Resolve?

Typically, from start to finish, contested divorce cases usually take 1-2 years to resolve (at least in the greater NYC area). They can be shorter or longer than that, depending on the case & the court. I have had some really bad and very contentious cases that lasted for many years.

In fact, one case I was involved in wound up lasting 8 years. There were particular circumstances behind case and certain reasons why it lasted that long. One was that my client was extremely litigious. I was his 6^th attorney, and by the time I signed on to the case, my predecessors had already taken it up to the appellate division twice and gotten decisions reversed both times, resulting in new trials.

Of course, that is an extreme example. More often than not, contested divorce cases will not last longer than two years, and a good deal of them will not last much longer than one year.

One of the main reasons contested divorce cases take as long as they do is because the process has a number of stages, each of which have to be placed on the Court’s schedule. In addition, each of these stages can be adjourned, which is when a hearing phase is stopped to provide time for one or both parties to complete a task or meet a requirement. When an adjournment happens, a new date must be scheduled to continue that part of the trial or pre-trial. These dates are often spaced out rather distantly from one another – especially in the greater New York City area.

For example, the normal course of a contested divorce case involves three separate conferences—a Preliminary Conference, a Compliance Conference, and a Pre-Trial Conference—all before the trial even begins. The date for the trial isn’t even set until the Pre-Trial Conference. Any one of those conferences can be adjourned, sometimes more than once, with an average of 2-3 months between adjournment and the rescheduled date. On average, in a given contested divorce case, I usually estimate there will be 3-5 pre-trial Court appearances before we even hit the trial.

When it comes to the trial itself, proceedings also happen over the course of several Court dates. Typically, contested divorce trials take 3 to 5 dates to complete, but it all depends on the case in question and which specific issues are being contested (as well as how many hours the Judge gives the case on any particular day). If both custody/visitation issues and financial issues (like spousal support, child support, and division of assets) are being contested, you may actually have somewhere between 5-10 trial dates. On the other hand, if there is only one limited issue being tried, it’s possible the trial could be completed in around 1-2 days.

For more information on Domestic Violence & Contested Divorces In NY, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.