The decision to divorce can be made suddenly or after a long period of disagreement between spouses. No matter the situation, emotions can run very high upon filing for divorce. After learning about the divorce filing, a spouse may react out of anger or jealousy. The law protects spouses from some forms of retaliation, but not all types. Below is an overview of common types of retaliation and legal remedies available.
Physical retaliation by a spouse is actionable while a divorce is pending, just like it would be if there were no divorce filing. If a spouse physically attacks the other, the victim has a claim for civil battery. This means that a jury can hear about the incident, and the victim may be awarded monetary damages. Physical abuse will also likely carry criminal components. However, criminal cases do not result in monetary damages for the victim. Instead, criminal cases may result in probation or jail time for the abuser.
The victim of a physical attack or threat of a physical attack may also seek a Protection from Abuse Order under § 60-3107. This order can be filed in court, and once granted, will prevent the abusing-spouse from coming near the victim. An order may also be obtained by a spouse when the children are abused by the other spouse. This order will control access to the home, usually prohibiting the abusing-spouse from entering the property. These orders are the most common types of protecting spouses during a pending divorce.
Verbal Abuse and Harassment
Victims of verbal abuse may also have an independent legal claim against the retaliating spouse. Verbal abuse can lead to a claim of assault by placing the victim in fear of being physically abused. It can also lead to a claim of intentional infliction of emotion distress, known as the tort of outrage. Intentional infliction of emotional distress requires outrageous actions by the retaliating spouse that are meant to cause serious emotional harm. This means that for the emotional or verbal abuse to be an independent legal claim it must be extreme. Criminal law prohibits a wide variety of activities, like telephone harassment and stalking. However, criminal prosecutions do not offer any redress for the victim’s suffering in the form of monetary damages, rather criminal prosecutions only serve to punish the abuser or harasser.
A Protection from Abuse Order is not available for emotional or verbal abuse. These orders are only available for physical abuse, sexual abuse, or threatened physical or sexual abuse. Verbal and emotional abuse is actionable through other legal means, but a Protection from Abuse Order does not prevent the abusing-spouse from having contact with the victim. This means that the abusing-spouse will still be allowed to enter the marital home as he or she wishes.
Destroying Property or Spending Shared Accounts
A property division must occur in every divorce, and the court will have to make a fair distribution of all the property between the spouses. One of the factors that the court considers when making its determination to divide property is the squandering of assets. When a divorce is filed, each spouse has an undetermined interest in al property owned by the couple or either spouse. During this time, the property cannot be destroyed or given away without permission of each spouse. This could happen in the form of one spouse destroying the marital home by doing things like intentionally flooding the home or making holes in the walls. It could also happen in the form of one spouse burning through any money that the couple has, including withdrawing and hiding money or purchasing expensive items that solely benefit one spouse. Generally, the court will cred the squandering-spouse’s share of the property with the value of what was lost or spent if a spouse has squandered or destroyed any assets. This means that the court treats the squandering-spouse as having received the amount of whatever they squandered when determining how to divide the remaining property. For example, if one spouse gave away $10,000 of the couple’s money, then that spouse’s portion of the property would be reduced by $10,000.
The most common type of retaliation brought on by filing for a divorce is perhaps social. Social retaliation can have devastating emotional effects on a spouse already going through a painful divorce process, for example, if a spouse encourages other people to ostracize the other spouse for filing for divorce. Unfortunately, the law is not able to redress every unpleasant and immoral thing individuals can do to one another. Though social retaliation is extremely unpleasant, there is no legal remedy available to the victims. This is true for all forms of social retaliation in church or religious groups, amongst friends, and even neighbors.
However, one exception to this is when the spouse lies about the other spouse. If the spouse lies about the other spouse’s actions and the victim’s reputation is harmed, the law may be able to provide redress in the form of a slander claim. However, slander claims can be tricky because it requires a very invasive discovery process, especially if the slanderous statement concerned sexual activities. Even if the victim prevails after the long and invasive process, the monetary damages are often minimal. Therefore, even in the case of damaging lies, social retaliation is often difficult for the legal system to redress.
Filing for divorce is a difficult process that is made even harder by retaliation. Fortunately, some forms of retaliation can quickly be addressed by the legal system. On the other hand, some take great time and offer very little reward, and some simply cannot be redressed by the legal system. It is important to contact experienced legal counsel to determine what options are available to stop and redress retaliation by your spouse. You must keep your attorney informed of all types of retaliation your spouse may commit after learning of the divorce filing.