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Divorce in Texas is a difficult and emotional process, and it can cause disruption to every aspect of a person’s life. Domestic violence makes it even more difficult. A person experiencing domestic violence might feel trapped in a dangerous relationship, especially if there are children involved. A knowledgeable and skilled domestic violence lawyer can help them understand their rights and the options available to them, and can develop a plan to protect themselves while getting out of the marriage. People who have been accused of domestic violence also need the help of a family law attorney. Houston courts handle divorces and child custody disputes in one type of court, and criminal cases in another. The rules and procedures are different in the two courts. The following are tips for both sides in a family law dispute involving alleged domestic violence.
The Texas Family Code uses the term “family violence” to refer to assault, abuse, and other acts of violence against a member of one’s family or household. “Family” includes:
The terms “grandchild” or “grandparent” may extend to further generations to include great-grandparents or -grandchildren and so on. The definition of “family” may also include aunts, uncles, and in-laws. Members of one’s household are also covered by family violence laws, even if they are not related in a biological or legal sense.
An act of family violence may involve something “intended to result in physical harm, bodily injury, assault, or sexual assault;” or an act that “reasonably places the member in fear” of such harm. It does not, however, include actions that are primarily defensive in nature.
The Texas Penal Code defines “assault” to include “intentionally, knowingly, or recklessly” causing someone “bodily injury,” and threatening them with bodily injury. If the alleged victim is a family or household member, the offense is often known in Texas courts as “assault with family violence.” It is a misdemeanor if a defendant has no prior convictions. It becomes a felony if there is one or more prior convictions involving family violence. Courts can enhance the penalties for many offenses if they find that family violence occurred, as defined by the Family Code.
In a criminal case alleging family violence, prosecutors must prove a defendant’s guilt beyond a reasonable doubt. This is the most difficult burden of proof in our court system. In family court, the person alleging family violence has a much lower burden. They must show that the preponderance of evidence supports a finding that family violence occurred. If “beyond a reasonable doubt” means that the court must be 100% sure, “preponderance of evidence” means it must be 51% sure. A domestic violence lawyer can guide on what the burden might mean in your specific case.
One of the most direct ways that a domestic violence attorney can help a person alleging family violence in Texas is by seeking a protective order. As a general rule, state law directs courts to grant a request for a protective order if they determine “that family violence has occurred and is likely to occur in the future.”
A person can obtain a temporary ex parte restraining order from a court if they can show “a clear and present danger of family violence.” Ex parte means that the court may grant the order without a hearing or notice to the other side. This type of order is only valid for twenty days, unless extended by the court. In most cases, the court will want to hold a hearing as soon as possible.
A protective order based on a finding of family violence can order a party to perform certain acts and refrain from certain other acts. These may include:
A conviction for a criminal offense involving family violence, or an allegation of family violence, can impact many other aspects of a divorce or child custody case:
For a person who has endured family violence, a domestic violence attorney can help make certain that their divorce or child custody case asserts every possible claim under Texas law, and that their rights are protected in court. This means identifying every way that a finding of family violence against their spouse can benefit their claims in a divorce, from protective orders to spousal maintenance awards.
It also means asserting additional claims, where feasible, to recover for damages suffered as a result of the family violence. A party to a divorce case, for example, can assert other civil causes of action as part of their divorce petition. This could include claims for assault and battery, as well as claims specifically authorized by Texas law, such as stalking.
If a party to a divorce or child custody case has been accused of family violence, they need an experienced domestic violence lawyer to advocate for their rights. This might include working to ensure that nothing that emerges in court proceedings in the family law case can affect their rights in an ongoing criminal case. The Fifth Amendment, for example, protects a person’s right against self-incrimination in criminal court, but applies somewhat differently in family court.
Stacey Valdez is a board-certified family lawyer who represents clients in the Houston, Texas area. At Stacey Valdez & Associates, we guide our clients through some of the most difficult ordeals anyone can face, such as divorce and child custody disputes. Our clients and their families are, and will always be, our team’s top priority. Please contact us online, or call us at (713) 294-7072 today to schedule a confidential consultation with a member of our team. Your first meeting with us is free in most cases.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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