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Family Law

Updated:

June 3, 2022

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How Does Domestic Violence Affect Divorce: Depp & Heard Case Study

domestic violence and divorce

The 2022 defamation trial centered around Johnny Depp and Amber Heard’s tumultuous marriage and divorce sparked a national conversation about spousal abuse, trauma, PTSD, and divorce because of domestic violence. Although entertainment news outlets covered the trial extensively, the real issue - domestic violence and intimate partner violence - is highly problematic and not entertainment.

Like many couples and families, Depp and Heard had a complicated relationship. Their love story had elements of intense emotions, aggression, and substance abuse - issues that many non-celebrity couples deal with.

As Texas family law attorneys, we represent many individuals who are victims of domestic abuse and are interested in getting a divorce after domestic violence. We know - whether you are in the public eye or not -  this is a difficult course to navigate, especially when finances are impacted and children are involved.

At Brooks & Radchenko, we help our clients get in the strongest legal position to reach the best possible outcome.

What Is Family Violence?

Before Depp and Heard’s 2022 legal standoff, family violence was the topic of national discussion in 2021, when Netflix’s hugely popular show Maid was viewed by 67 million people. The 10-episode mini-series, based on Stephanie Land’s memoir Maid: Hard Work, Low Pay, and a Mother’s Will to Survive, highlighted the difficult, complex, multi-layered aftermath of domestic violence.

The show illustrated an important truth: family violence doesn’t start with violence. Toxic and abusive relationships usually start normally, with romance and mutual admiration, and affection. Abuse starts and a relationship can turn toxic very slowly. The start of the cycle of power and control may start with a belittling comment, a suggestion that something the victim did hurt the abuser’s feelings, or even a threat that is walked back as a joke. When full-blown, family abuse can consist of:

  • Physical abuse;
  • Psychological abuse;
  • Verbal abuse;
  • Financial abuse;
  • Gaslighting;
  • Coercive control, such as isolating someone from their support system or monitoring activity or location throughout the day. 

Once it begins, violence continues to increase with frequency and severity, often with cool-down periods where a victim may convince themselves that the perpetrator has changed. 

Divorce and domestic violence can be complicated because abuse and control can worsen when divorce proceedings are initiated. The human desire to “keep the peace” can delay proceedings, and even give a victim false hope that an abuser will change their ways.

In cases of domestic violence and divorce, Texas laws will allow a judge to waive the mandatory waiting period (more on that, below) to grant a divorce relatively quickly.

Can Domestic Violence Be Grounds for Divorce?

domestic violence divorce settlements

In Amber Heard and Johnny Depp’s divorce, Heard filed for divorce in California based on “irreconcilable differences”. In California, divorces can only be filed under “no-fault” grounds”. The only other option of grounds in California is “incurable insanity” a rare instance where one party has been deemed permanently mentally incapacitated, and the burden of proof is high.

In Texas, you can file a fault or a no-fault divorce. You do not need to find a “fault” with your spouse in order to support them, you can file simply based on irreconcilable differences. However, in domestic violence proceedings, it can be helpful, especially in custody and asset division, if you are the wronged party (the judge may favor you in alimony and custody decisions). Divorce because of domestic violence is often necessary, and as stated above, the court may be able to expedite proceedings.

People who have suffered spousal abuse often ask, “is physical abuse grounds for divorce?”. In other words, can you file for divorce based on domestic violence? The law in Texas does not specifically list “domestic violence” as grounds for divorce, but cruelty grounds. Specifically, in Sec. 6.002 of the Texas Family Code , the law states “The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable” .

Other grounds for divorce in Texas include: 

  • Adultery;
  • Conviction of a felony;
  • Abandonment; 
  • Living apart for more than 3 years; 
  • Confinement in a mental hospital. 

If you do file for a fault-based divorce, you will need to provide evidence. 

How to Protect Yourself From Family Violence in Texas?

Situations involving family violence can be overwhelming, confusing, and rapidly changing. As a victim, there are a few legal protections available before and during divorce due to domestic violence:

Temporary Restraining Order (TRO)

A TRO can offer protection for you, your children, your safety, and your property, and prohibit your spouse from committing specific acts during a divorce or custody case. This is an emergency court order that prohibits someone from taking specific actions until a hearing can be held. 

For example, a TRO could prohibit:

  • Selling or relinquishing assets;
  • Confiscating your mail; 
  • Canceling health insurance coverage;
  • Removing a child from school;
  • Incurring new debt; 
  • Withdrawing funds from a shared bank account. 

Being served with a TRO does not mean you’ve done anything wrong, or that you are accused of a crime. TROs are only valid between spouses and not binding against third parties. They are intended for emergency situations only and cannot exclude a spouse from a residence. 

Protective Order

An emergency protective order can prohibit someone who has committed family violence against you from committing further acts. If you are the victim of domestic violence, sexual assault, human trafficking, or stalking, an Emergency Protective Order may be sought to prevent

  • Further acts of violence;
  • Harassments or threads against you; 
  • Going to or near your home, work, or your children’s school/daycare facilities. 

In Texas, emergency protective orders are good for 31-91 days. 

When Amber Heard filed for divorce from Johnny Depp back in 2016, a Los Angeles judge granted her a temporary restraining order based on her claims that her husband was emotionally, physically, and verbally abusive. She withdrew the restraining order a few months later when the two settled the matter. 

It is important to note that a Temporary (ex parte) Restraining Order in California is different than one granted in Texas. A California restraining order is more aligned with a protective order in Texas in the protection offered to alleged abuse victims. 

In Texas, TROs and protective orders are sometimes used interchangeably, but there are important differences between them in Texas. Violation of a TRO is not enforceable by police, but a violation of a protective order is. 

How Does Domestic Abuse Affect Divorce Settlement, Hearings, and Proceedings?

If you are the victim of spousal abuse, a Texas family law attorney can explain how this may affect your divorce, including:

Waiting Periods

Section 6.702 of the Texas Family Code establishes that a court may not grant a divorce until 60 days have passed from when the suit was filed. However, this mandatory waiting period may be waived if:

  • You have filed an active protective order against your spouse. 
  • Your spouse has been convicted of domestic violence.

Custody and Time with Children

Custody is more than just time spent with children. When deciding custody matters, a family law judge will decide. 

  • Who makes medical and educational decisions about the child.
  • Who decides where the child lives.
  • How much time each parent gets with the child/children. 

When family violence is demonstrated (with credible evidence), a judge will at the minimum, consider giving the non-abusing parent sole custody.

Property Division

Does domestic violence affect divorce settlement? Yes, especially when it comes time to divide the property. When any couple divorces, property acquired over the course of the relationship must be divided. In Texas fault divorces, a judge will divide property “in a manner that is just and right ”. In divorce cases involving domestic violence, the judge may award less property to an abusive spouse. In some cases, the reduction in award to the abusive spouse can be significant. In other words, the judge’s determination of what is “fair” will not necessarily mean an “equal” division of assets and property.

Spousal Maintenance

Texas does not award spousal support for marriages that last less than 10 years but domestic violence divorce settlements can include spousal maintenance. Like with waiting periods, Texas makes special considerations for victims of domestic violence. Spousal maintenance (court-ordered spousal support) may be awarded for marriages lasting less than 10 years when:

  • Family violence occurred within two years before the suit was filed.
  • Family violence occurred during the suit. 

When Amber Heard filed her divorce proceeding, she requested temporary spousal support. Although Johnny Depp’s lawyers made the argument that Heard was able to support herself, a judge ultimately denied her request for temporary relief, citing she did not provide all the required documentation. 

How Does Prenuptial Agreement Affect a Divorce?

Amber Heard and Johnny Depp did not have a premarital or prenuptial agreement in place. A “prenup,” as they are often called, can be used to:

  • Protect spouses from each other’s debts. 
  • Set aside separate property to go to children from prior marriages. 
  • Clarify financial rights and responsibilities during the marriage. 
  • Establish ahead of time whether either spouse will receive alimony. 

Some people planning to marry may be hesitant to discuss a prenup, on the grounds that it implies a lack of confidence in the longevity of a marriage. The issue of a prenuptial agreement was famously covered in the HBO show Sex and the City.

When utilized, prenuptial agreements are a valuable tool before a marriage to establish expectations and foster important conversations about how matters will be handled before, during, and after marriage. A customized prenuptial agreement can include provisions for certain potential issues that could arise, and even clauses for division of property when one spouse is convicted of domestic violence. 

What Important Factors Will a Court Consider in a Divorce Proceeding Involving Domestic Violence?

Most marriages (and divorces) are not high-profile. In celebrity divorces, when all aspects of a relationship and legal matters make headlines, allegations of domestic abuse can impact future earning capacity. In the Heard/Depp matter, Depp’s lawyer argued that Heard alleged abuse in an attempt “to secure a premature financial resolution”.

However, the court will look closely at the effects of domestic violence even when millions of dollars in future movie studio contracts are not at stake. Allegations of, and especially convictions of domestic violence during divorce will impact the outcome of a divorce.

In making decisions on property division, alimony, and child custody, the court will consider:

  • The type and severity of abuse: Judges will look at the duration and seriousness of abuse on a spouse and children. Typically, the longer the abuse goes on, the more favorable a court will be towards a victim. 
  • Evidence and proof: In evaluating abuse, the court will consider the evidence a victim supplies to support the credibility of allegations. Evidence can take many forms, depending on the type of abuse, and could include communications from the abuser, police reports, evidence of emergency room treatment, or therapy visits. 
  • Impact of violence on the victim’s earning capacity: If an act of domestic violence caused physical or mental disability, or diminished a victim’s earning capacity, the court will consider this in making decisions related to the financial aspects of the dissolution. 
  • Efforts and patience of the victim: The court may consider the victim’s patience and efforts to salvage the relationship as a relevant factor in a case. 

Take Immediate Action to Divorce an Abuser

The Amber Heard / Johnny Depp divorce and legal aftermath illustrate that there was no clear “winner” in their high-profile marriage and even higher-profile divorce.

Taking on the legal system while dealing with abuse at home can feel overwhelming. No one ever gets married hoping they will get a divorce. However, if you or your children are dealing with abuse, the decision to leave is not a choice, it is a necessity. A Texas family lawyer familiar with domestic violence divorce cases can help you. At Brooks & Radchenko, we can explain the options and the immediate protections that are available to you when you are facing domestic abuse and divorce.

This blog can certainly not answer every question regarding domestic violence and divorce - and every divorce is different. For more information about your rights in a divorce involving domestic violence, contact Brooks & Radchenko. We serve clients across the DFW metroplex and throughout North Texas. Call us at 903-818-8681 to schedule a free case review.

FAQ

What if I’m afraid for my safety or for the safety of my children?

Divorce can trigger unpredictable emotions, and threats of violence should always be taken seriously. If you are afraid your spouse may physically hurt you when you file for divorce, you should discuss your concerns with your lawyer. Getting the 60-day waiting period waived after filing can mean you can be divorced very quickly.

How will my spouse be notified that I have filed for divorce?

If you file for divorce, your spouse must be served. If you are unable to locate your spouse, do not have shared community property, and there are no children involved, you may be able to file by posting a notice at the courthouse.

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