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Will a history of domestic violence impact your family law case?

domestic violenceBy: Katie Kohn, Esq.

Incidents of domestic violence occur all too often, with 1 in 3 women and 1 in 4 men reporting that they have been victims of domestic violence in the United States. Due to the prevalence of domestic violence, families going through a family law case may have experienced domestic abuse or intimate partner violence at some point in their relationship. There are often questions about if and how the judge will consider domestic violence in their case. This article seeks to answer some of those questions.

How does Florida law define domestic violence?

Florida law defines domestic violence as physical or sexual abuse by one family member or intimate partner against another. (See F.S. § 741.28(2)).  Although the research and literature regarding domestic violence often include non-physical acts of abuse in their definitions of domestic violence, when determining whether a crime of domestic violence has occurred or an injunction for protection (restraining order) should be granted in Florida, instances of verbal, psychological, financial, or emotional abuse are not considered to be “domestic violence” unless they rise to the level of threatened physical harm. However, in a family law case involving parenting issues, alimony, or equitable distribution, a judge can consider both physical and non-physical forms of domestic abuse in some instances.

Will issues of domestic violence be considered in decisions about parenting?

Florida law allows and sometimes requires a judge in a family law case to consider domestic violence issues when determining parental responsibility and timesharing for a child.

divorce - childWhen ordering parental responsibility (how parents make decisions for the child), if one parent has been convicted of a misdemeanor or higher involving domestic violence, then the judge will presume that shared parental responsibility is detrimental to the child. If the convicted parent does not rebut that presumption, the judge cannot award shared parental responsibility or timesharing to that parent. (See F.S. § 61.13(2)(c)(2))

In cases involving a history of domestic violence where there have been no arrests or convictions, domestic violence can still be considered when the judge makes decisions about children’s issues. In making those determinations, the judge considers 20 different factors to determine what is in the best interests of the child. (Florida Statutes § 61.13(3))

Factor (m) specifically allows the judge to consider a history of domestic violence, even if there has never been an arrest or case regarding domestic violence. The domestic violence considered under this factor is generally limited to instances of physical violence. Other factors allow the judge to consider non-physical domestic abuse:

  • Factor (l) deals with the demonstrated ability of each parent to communicate with the other regarding the child;
  • Factors (f) and (g) relate to the parents’ mental, physical, and emotional wellbeing;
  • Factor (q) requires the judge to consider each parent’s demonstrated ability to maintain an environment for the child which is free from substance abuse;
  • Factor (r) is focused on each parent’s ability to protect the child from the negative aspects of the division of the family, including each’s ability to refrain from disparaging comments about the other parent; and,
  • Factor (t) is a catch-all and allows the judge to consider anything else she may feel is relevant to determining a specific parenting plan.

Where domestic abuse is or has been present in a family, some or all of these factors may be implicated because an abusive or violent parent is often unable to communicate to, speak about, or interact appropriately with the other parent, issues of substance abuse and domestic abuse often coexist, and when one parent harms another parent, particularly in front of the child, this can be evidence of the abusive parent’s inability to recognize and put the child’s needs first.

Although the statute identifies the factors the judge uses to make decisions about children’s issues, the judge has significant discretion in what she determines to be relevant to each factor and how much weight and consideration to give each one. So while I have identified some factors where a judge could consider domestic violence or abuse, there is no requirement that the judge do so. In addition, the judge will consider all of the 20 factors identified in the statute to determine what is in a child’s best interest, so even if domestic violence or abuse is present, the judge may consider it as just one factor of many and there is no guarantee that the presence of domestic violence or abuse will ensure an outcome in one parent’s favor.

Will domestic violence be considered by the judge when ordering alimony or equitable distribution?

alimonyThe answer to this question is relatively straightforward and the short answer is no; generally speaking, the judge will not consider issues of domestic violence in regard to an award of alimony or equitable distribution.

When determining alimony and equitable distribution, the judge considers factors that primarily focus on the financial position and circumstances of each party (F.S. § 61.08(2) and § 61.075(1)).  Evidence of domestic violence is generally seen as irrelevant to those issues and is therefore not allowed. However, as with issues related to parenting, the judge must consider several different factors in making decisions regarding alimony and equitable distribution, so if you can connect the domestic violence to one of the specific factors, then such evidence may be allowed. For example, suppose the effects of domestic violence, such as physical or psychological injuries, have caused a party to have an impaired physical or emotional condition or prevented a party from consistently working or achieving financial independence. In that case, this may be relevant to the judge’s determination when she considers factors addressing each party’s physical and emotional condition, financial resources and economic circumstances, and each party’s earning capacity, employability, and career or educational interruption.

However, the judge will only allow evidence of domestic violence if it has had a financially relevant impact on the party. Evidence of domestic violence alone, without that connection, will not be allowed.

Bottom Line

While we can hope for a world where domestic violence does not occur, until we get there, for families that have experienced domestic violence and are going through a family law case, I hope this article has helped shed some light on how and to what extent Florida courts will consider domestic violence in those cases.

If your family has experienced issues of domestic abuse and you need assistance navigating a family law case, you may contact me directly at (239) 344-1319 or katie.kohn@henlaw.com.

If you are a victim of domestic abuse or know someone who is, emergency assistance is available at the National Domestic Abuse Hotline (800-799-7233), the Shelter for Abused Women and Children in Naples, FL (239-775-1101), and Abuse Counseling and Treatment, Inc. in Ft. Myers, FL (239-939-3112).

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