First Steps in a Divorce Involving Domestic Violence

Victims of domestic violence often do not know where to turn. There is often a sense of isolation and desperation. Perhaps more than this is a fear of the unknown and the related fear of whether there is anything out there that can help.

The divorce process can be quite daunting. Couple this with domestic violence and abuse, and some may choose not to act at all for fear of making their situation worse. For those, it is important to know that are protections and well established procedures for protecting victims of domestic violence.

First, and perhaps most obviously, the victim should contact the police at the time or as soon as possible after the act of domestic violence has occurred. Domestic violence is taken extremely seriously in New Mexico. If the perpetrator of domestic violence is still present, he or she will be arrested. Equally important for the safety of the victim, an order of protection will be issued by the court prohibiting contact by the defendant with the victim. Violations of the order of protection will result in immediate arrest and frequently incarceration for the duration of the criminal proceedings.

The criminal process will result in immediate relief to the victim. However, the criminal courts lack jurisdiction to address the issues involved in a divorce. One important issue that comes up immediately in these cases is possession of the community residence. The criminal courts cannot address this. However, the domestic violence divisions of the New Mexico family courts can. Though domestic violence hearing officers are also limited in the issues that they can address, they can address possession of the community residence and temporary child custody and support. Again, like the criminal courts, the most important product of these proceedings for the protection of the victim is the no contact order. Keep in mind that the Petition for Order of Protection from Domestic Abuse can be filed even if no criminal charges have been filed.

Finally, the divorce proceedings should be initiated immediately. This may seem a step too far for many victims of domestic violence who may maintain hope for the marriage. Be this as it may, filing for the divorce provides significant protections to the victim (as with any other party filing for divorce). The most important first step in the divorce process is the issuance by the court of a Temporary Domestic Order (TDO). The TDO basically freezes the status quo, meaning that the parties are prevented from doing a number of things that would harm the other party.

Keeping in mind that there is domestic violence present and domestic violence offenders are quite creative in their forms of abuse , the TDO is very important. For instance, the TDO prevents either party (i.e. the domestic violence offender) from selling assets, closing bank accounts, running up debt and other issues related to the community property and debt of the parties. Most importantly, the TDO prevents either party from relocating with the children. Specifically, the parties are prevented from taking the children out of state. Violation of this provision can result in charges of interference with custody and even parental kidnapping. These are very serious felony charges that should deter all but the most determined and malicious domestic violence offenders.

The TDO affords other protections as well. The TDO remains in place so long as the divorce proceedings are in process or until agreed upon by the parties or order of the court. They are not permanent and should a victim and offender reconcile and decide to terminate the divorce proceedings, the TDO will expire.

Rest assured, there is relief for domestic violence victims. There are many organizations throughout the State of New Mexico that provide services for victims of domestic violence. For a partial list of these services, click here: Helpful Links – Domestic Abuse/Domestic Violence. If one these organizations cannot help, they should be able to point you toward one that can. Though it may be frightening to get started in protecting yourself (and your children), if you are a victim of domestic violence, getting started is the only good option.


Related Reading:
What Does a Civil Order of Protection From Domestic Abuse Mean to You?
Domestic Abusers May Seek Control through Child Custody
Consequences of a Domestic Violence Order of Protection Under the New Mexico Family Violence Protection Act

Collins & Collins, P.C.
Albuquerque Attorneys

(505) 242-5958