There is often obvious animosity between a husband and wife who are divorcing, and for those still living under one roof, more problems can arise. One person might think of what he or she could do to oust their partner from the residence - no easy feat if the other party has nowhere else to go or simply doesn't want to leave.
In Indiana, this rarely happens before a preliminary hearing, unless there's domestic violence that leads to the granting of a protective order, Indianapolis family law attorney Patty McKinnon said.
In a typical divorce, she said, "Neither party has exclusive possession of the house, pending the preliminary hearing. The same applies to neither party having sole custody, or receiving child support, prior to a court order. Most attorneys tell their clients, 'We need to wait until the hearing occurs to get possession of the house.'"
She said attorneys will tell their clients the same thing for an order regarding custody, parenting time, or child support.
"So, virtually everything is up in the air until a preliminary hearing occurs," she added.
Typically, in Marion County it has been her experience that it can take three to four weeks, if not longer, for a preliminary hearing to take place, she said.
"So, is this an issue for the divorcing parties? Yes. Is there something the attorney can do about it prior to preliminary hearing? Not unless the client files for a protective order" that specifies one party be evicted.
She added this could also happen if the parties reach an agreement, in writing, to give one or the other possession of the house.
The Protective Order Pro Bono Project of Indianapolis, which is part of the Indiana Coalition Against Domestic Violence, has had more clients in the past six months or so who have sought help after putting off divorce filings because of the economy but have reached a point where it's no longer safe to be in the same residence as an abusive partner, according to Kerry Hyatt Blomquist, legal director of ICADV and director of the POPBP.
While putting off a divorce might make sense for financial reasons - it is expensive to hire a divorce attorney and it's not always easy to sell a house in the current market without taking a loss - a bad economy is also something that can make an already volatile situation worse because of the stress of financial hardship, job loss, or the possibility of losing one's home.
In situations that do involve a married couple going through a divorce, Blomquist said it's not the norm but once in a while a client will ask for exclusive possession of the house. However, in most situations she and others at the POPBP will strongly encourage the victims to seek shelter instead of staying in the same place while trying to evict their partners.
"Indiana Code is drafted after the model code of family violence, which provides for circumstances allowing for economic relief. It doesn't make sense to revictimize a victim of violence by making that person leave," she said. "It's a viable remedy as is child support and restitution and other forms of relief."
She added, "Domestic violence advocates will say it's nice to have that available in some situations, but when there's high lethality, we will always recommend the person to go to a shelter."
Getting a person into a shelter is just part of the process, she said. She added that while many shelters are full at least partly because of the bad economy that doesn't mean there is nowhere for victims to go to be safe.
"We will find a place," she said. "We're planning holistic safety. I have to think, 'Am I empowering this person to live without them?' That might not be the case if they are staying in a house or apartment they can't pay for by themselves. Even if the person is benefiting in some way by staying, that sort of defeats the purpose in the long run."
There have been some exceptions, including a woman from the Middle East who was living with her husband who was abusive and rarely let her leave their home.
"She was beaten with a belt ... and emotionally abused," Blomquist said. "She was precluded from having a driver's license or money of her own. She was married to a wealthy guy who owned a big house and apartment complexes. ... Because she had been completely isolated, once we got a protective order we did request he be evicted. Her home was the only place she felt she could be safe, and he also had other places he could go to."
Blomquist said, "They all have to be looked at on a case-by-case basis. I never want to give the impression that it's a readily available remedy. ... People will think, 'I don't have to file for divorce, I'll just get a protective order,' and that takes it away from the victims who really need it."
She added the conflicts that arise during the process of going through a divorce should also be considered by family law attorneys and the courts that hear their cases.
"I don't think very real domestic violence issues are considered as much by family courts as they should be. ... The vast number of relationships that end do not end cheerfully. There is a lot of potential for very real danger in a highconflict divorce," she said.
She credited family law lawyers on the whole for recognizing the difference between cases that are "full of conflict and those that are unnecessarily or illegally dangerous," but added, "I wish we got more calls. We can provide statistics, and free expert testimony about domestic violence and patterns of behavior."
Because it's a statewide organization, she said, she and her co-workers can provide attorneys with contact information for agencies all over the state.