Domestic Violence May be a Consideration in Property Division in Divorce

In 1994, Congress enacted the Violence Against Woman Act “…to treat violence against women as a major law enforcement priority, to take aim at the attitudes that nurture violence against women, and provide help survivors need.”

For family law practitioners, domestic violence, particularly spousal and child abuse, remains an important consideration in custody/visitation, mediation and property division.

In some states, domestic violence is a specifically enumerated factor in the division of marital property. In these jurisdictions, spousal abuse by itself is a relevant factor, and the courts consider that the abuse need not be egregious. The courts assume that the abuse is the cause of the marital breakdown. Other states consider spousal abuse economic misconduct because it results in increased medical bills and diminished employment opportunities. In some states, fault — even the abuse of a spouse — may not be considered at all.

The Uniform Marriage and Divorce Act requires that assets be divided without regard to fault or marital misconduct, but even in UMDA states, economic misconduct is a permitted consideration in the division of property, thus opening the door to consideration that domestic violence has an economic impact.

When domestic violence is a consideration in the distribution of property, the most common result is that the wife, who in the abused spouse in 95 percent or more of the cases, receives a larger share of the marital estate than she would normally receive.

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