How Does Domestic Violence Affect a Divorce in Texas?
Domestic violence can be cited as a fault ground in a Texas divorce, and it has real consequences for property division, child custody, spousal maintenance, and protective orders. If you are leaving an abusive marriage, or if you have been accused of family violence, the outcome of your divorce depends heavily on how this issue is handled in court.
Why the Right Attorney Matters in These Cases
Domestic violence cases sit at the intersection of criminal law and family law. The attorney you choose needs to understand both. At Varghese Summersett, our family law division handles the full range of divorce and custody matters, including cases involving active protective orders, pending criminal charges, and contested custody disputes where family violence is an issue.
Our team includes attorneys who are particularly passionate about advocating for survivors of domestic violence. Associate McKenzie Coe, a graduate of Texas A&M School of Law, focuses her practice on cases involving domestic violence and is known for her fierce advocacy for families in crisis. The division is led by J. Turner Thornton, a licensed mediator with extensive experience in contested divorce litigation. When family violence touches a divorce case, the stakes could not be higher. Property, children, and safety are all on the line. You deserve a team that has handled these situations before.
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What Questions Are People Asking?
People searching for a domestic violence attorney in the context of divorce are often asking more than one question at once. They want to know if the abuse they suffered will be taken seriously in court. They want to know if a protective order will affect their custody case. And sometimes, they have been accused of violence they say did not happen, and they need to understand what that accusation could mean for their divorce. This page addresses all of those concerns.
Some of the most common questions we hear:
- Can I use domestic violence as grounds for divorce in Texas?
- How does a history of family violence affect child custody?
- Will a protective order help me during the divorce?
- What if I have been falsely accused of domestic violence?
- Does family violence affect how property gets divided?
The Legal Framework: Cruelty as Fault Grounds for Divorce
Texas allows both no-fault and fault-based divorce. Under Texas Family Code § 6.002, a court may grant a divorce in favor of a spouse who has been treated with “excesses or cruelties” that render the continuation of the marriage insupportable. Domestic violence, physical abuse, and certain forms of emotional abuse can all qualify under this standard.
To obtain a fault divorce on cruelty grounds, the petitioning spouse must prove the conduct by a preponderance of the evidence, meaning it is more likely than not that the abuse occurred. The burden falls on the spouse making the allegation. Evidence typically includes police reports, medical records, photographs, witness statements, prior protective orders, and text or electronic communications.
The accused spouse has the right to contest the allegations and present counter-evidence. Texas courts evaluate the totality of evidence before making findings. A finding of cruelty carries legal consequences that affect how the court divides property and awards custody.
How Family Violence Affects Property Division
Texas is a community property state, but that does not mean assets are always split 50/50. Under Texas Family Code § 7.001, a court must divide the marital estate in a manner that is “just and right, having due regard for the rights of each party.” Fault in the breakup of the marriage is one factor courts may consider.
When a judge finds that domestic violence occurred and contributed to the breakdown of the marriage, the abused spouse may receive a disproportionate share of the community estate. This is not guaranteed, but it is a real possibility. Judges have wide discretion, and a documented history of abuse shifts that discretion in the survivor’s favor.
Courts consider several factors in making this determination, including the nature and extent of the abuse, whether children were present, the financial circumstances of each spouse, and the long-term earning capacity of the victimized spouse. A skilled attorney documents all of these factors before trial.
How Family Violence Affects Child Custody
This is often the part that matters most to people leaving an abusive marriage. Under Texas Family Code § 153.002, the best interest of the child is the court’s primary consideration in every custody determination. Family violence is one of the most significant factors courts weigh when assessing that standard.
Under Texas Family Code § 153.004, a court may not appoint joint managing conservators if credible evidence of a history or pattern of family violence is presented by a party. This is one of the few areas of Texas family law where the normal presumption in favor of joint managing conservatorship is directly rebutted.
What this means in practice: if you can demonstrate that your spouse has a history or pattern of physical abuse, the court is prohibited from placing you and your abuser in a joint custody arrangement. The abusive parent may still receive visitation, but the court has significant tools to impose conditions, such as supervised visits, monitored exchanges, and restrictions on the abuser’s access to children.
Conversely, if you are the parent accused of family violence, you need to understand how serious this allegation is before your first court appearance. Temporary orders can remove a parent from the home and restrict access to children before any final hearing takes place. An attorney must be involved immediately.
Protective Orders and Divorce
A protective order and a divorce are separate legal proceedings, but they affect each other directly. If a protective order is in place, it governs where the parties can be, how communication must occur, and in many cases, who stays in the family home. This shapes the entire divorce process.
Texas courts can issue emergency protective orders, temporary ex parte protective orders, and final protective orders. A final protective order, entered after a full hearing, can last up to two years and in some circumstances may be extended or made permanent. If your spouse violates a protective order, that violation can be a criminal offense and it strengthens your position in the divorce proceedings.
If you are seeking a protective order as part of your divorce, or if you believe a protective order has been misused against you, our attorneys can advise you on both sides of that issue. You can read more about protective orders in Texas and what they cover.
Spousal Maintenance and Family Violence
Texas has specific rules around spousal maintenance, and family violence creates an exception to the normal eligibility requirements. Under Texas Family Code § 8.051, a spouse who lacks sufficient property to meet minimum reasonable needs may qualify for maintenance if the other spouse was convicted of or received deferred adjudication for a family violence offense committed during the marriage.
This matters because it lowers the bar for the survivor to receive financial support after the divorce. Standard maintenance eligibility requires a marriage of at least 10 years and proof that the requesting spouse cannot meet basic needs. The family violence exception can apply to shorter marriages where a criminal conviction or deferred adjudication exists. If your spouse pleaded guilty to assault family violence or was convicted at trial, that record can directly affect what you receive in the divorce.
What If You Have Been Falsely Accused?
False accusations of domestic violence do occur, and they can be devastating. A spouse facing divorce may allege family violence to gain tactical advantage in custody or property proceedings. If that has happened to you, acting quickly is the only correct response.
You should not move out of the family home without legal advice. You should not respond to your spouse’s messages about the divorce in ways that could be taken out of context. And you should not assume that an accusation will be dismissed on its own.
Our criminal defense and family law teams work together on cases where a client is simultaneously facing family violence charges and a divorce proceeding. What happens in the criminal case affects the civil case, and vice versa. Having attorneys who understand both sides prevents costly mistakes. You can read more about false accusations of domestic violence and how they are addressed in Texas courts.
The Legal Process: What to Expect
Step 1: Safety Planning and Emergency Relief
For a spouse leaving an abusive relationship, the first priority is physical safety. That may mean seeking an emergency protective order through law enforcement or an ex parte protective order through the family court. It may also mean securing your financial accounts and documenting evidence before filing. An attorney can help you sequence these steps so that your legal moves don’t inadvertently tip off an abusive partner before safety is secured.
Step 2: Filing for Divorce and Seeking Temporary Orders
Once your safety is addressed, you or your attorney files the Original Petition for Divorce. In cases involving domestic violence, a request for temporary orders is typically filed at the same time. Temporary orders can determine who stays in the home, who has temporary custody of the children, and what financial support must be paid while the case is pending. These orders can be obtained quickly in emergency situations.
Step 3: Discovery and Building Your Case
Your attorney will gather evidence to support your claims of family violence. This may include police reports, hospital records, photographs, prior court filings, and records from any criminal proceedings. Witness depositions, interrogatories, and document requests are all part of this phase. In contested custody cases involving family violence, a guardian ad litem or amicus attorney may be appointed to represent the children’s interests.
Step 4: Mediation
Most Texas divorce cases go through mediation before trial. In family violence cases, a skilled mediator and protective accommodations are critical. An abuse survivor should never be required to sit in the same room as their abuser during mediation. Courts and mediators have protocols for shuttle mediation in these circumstances. J. Turner Thornton, who leads Varghese Summersett’s family law division, is a licensed mediator with experience in high-conflict matters.
Step 5: Trial
If mediation does not resolve all issues, the case goes to trial before a family court judge. In domestic violence cases, the judge will hear evidence on the fault grounds, the custody dispute, and the property division. Our attorneys prepare clients thoroughly for what to expect in the courtroom. You can read more about when a divorce goes to trial in Texas.
What to Expect From Varghese Summersett
Leaving a violent marriage is one of the hardest decisions a person can make. Going through that experience with a legal team that doesn’t understand both the emotional and legal complexity only makes it harder. Our family law division approaches domestic violence cases with both the empathy they deserve and the strategic focus they require.
From the moment you call, you will speak with a legal professional who understands the urgency. Our attorneys explain your options clearly, move quickly when emergency relief is needed, and work with our criminal defense team when there are parallel criminal proceedings. We handle cases across all of our offices in Fort Worth, Dallas, Southlake, and throughout the state.
McKenzie Coe is particularly focused on cases involving domestic violence, bringing her background and genuine passion for advocacy to every client she represents. The entire family law team, including senior attorneys like Dena Wilson, Kristen Carr, and Craig Jackson, stands behind every case our division handles.
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Frequently Asked Questions
Can I get a divorce in Texas if my spouse abused me but was never arrested?
Yes. A criminal conviction or arrest is not required to pursue a fault divorce on cruelty grounds in Texas. You must prove the abuse by a preponderance of the evidence, which means more likely than not. Evidence can include medical records, photographs, witness testimony, text messages, and your own testimony. A prior protective order, even one that was not tied to a criminal case, can also be relevant evidence.
Will a history of domestic violence automatically give me full custody?
Not automatically, but it significantly changes what the court can order. Under Texas Family Code § 153.004, if there is credible evidence of a history or pattern of family violence, the court cannot appoint joint managing conservators. The court will determine a custody arrangement in the child’s best interest, which may include sole managing conservatorship for the non-abusive parent, supervised visitation for the other parent, or conditions on contact. Each case is different.
What if my spouse files for a protective order to gain leverage in the divorce?
Courts are aware that protective orders are sometimes sought for tactical reasons in divorce cases. An experienced attorney can challenge an application for protective order at the full hearing, present evidence that the allegations are false or exaggerated, and document the improper motivation. If you believe you are facing a false or exaggerated accusation, you need legal representation before the protective order hearing takes place, not after.
My spouse has a pending family violence charge. How does that affect our divorce?
A pending criminal charge does not have to wait for resolution before the divorce moves forward, but the two proceedings affect each other. A guilty plea, deferred adjudication, or conviction in the criminal case can be used as evidence in the divorce. Statements made in the criminal case can also carry over. If your spouse faces a criminal charge while your divorce is pending, your divorce attorney should be coordinating with a criminal defense attorney to ensure both matters are handled strategically.
Can I get spousal support if my marriage was less than 10 years?
Normally, Texas requires a marriage of at least 10 years before spousal maintenance can be awarded. However, if your spouse was convicted of or received deferred adjudication for a family violence offense during the marriage, you may qualify for spousal maintenance regardless of how long the marriage lasted. The amount and duration are still subject to statutory limits, but the family violence exception allows survivors of shorter marriages to seek financial support.
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If domestic violence has touched your marriage, you do not have to figure out what comes next alone. The family law team at Varghese Summersett handles these cases across Texas with the seriousness and compassion they require. Reach out to speak with an attorney who understands what you are facing.
