The Domestic Violence Parallel Track

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"Your typical divorce plaintiff wants four things: (1) the house, (2) the kids, (3) the husband's paycheck, and (4) freedom to spend time in the house with her boyfriend," said one attorney. "It might take her two years to get to that point in the family court with accompanying legal fees. She can get there in a day through the domestic abuse system, probably without spending a dime. All that she needs to learn is to say 'I'm afraid of him.' She gets a house, the kids, and money every month without ever having to give evidence, be cross-examined, or bring any additional witnesses to corroborate."

Jeannie Suk, a Harvard Law School professor, is quoted in Alec Baldwin's A Promise to Ourselves (2008):

"The domestic violence protection orders I mentioned can be obtained without a criminal charge ever being filed. A woman can ask a court to issue an order excluding her husband from the home based on her claim that he has harmed or threatened her, often without the husband having the opportunity to present his side. Of course, in principle, this process could be a good thing if the woman is in danger. But inevitably, some divorce lawyers advise women clients to apply for domestic violence protection orders because it can be used as a powerful tool in the divorce proceeding . Given the expansion of the definition of violence that I mentioned, it really doesn’t take that much to show that a threat of violence exists and that a woman needs a protection order. It is not uncommon for domestic violence issues to come into a divorce case in this way. … As I mentioned it can be advantageous for the mother to allege conduct that suggests that the father seeking custody might be abusive. In the last fifteen years our courts have come to see domestic violence as a crucial issue in child custody decisions. Many states rightly have a presumption against awarding custody to parents who have engaged in domestic violence. The problem is the relative ease with which legal actors today seem able to view husbands as violent or potentially violent, since the definition of violence has expanded so much. Given that ease , it would be quite surprising if child custody disputes didn’t often involve some allegation of violence."

In virtually every state that we studied, litigators told us about benefits offered by legislators to people who can testify credibly that the person they are seeking to divorce is abusing them or abusing their joint children. At the same time, litigators told us that the costs of making a false accusation, even when a family court judge believes that it was false, are non-existent or minimal. According to our interviewees, repeated false allegations can be harmful when seeking sole custody of a child, but a rational custody-seeking parent would generally make at least one abuse allegation.

As you read this chapter, please keep in mind that we're not experts on domestic violence per se and that this is not a chapter on domestic violence per se. Our hypothetical scenarios do not include actual physical abuse and the attorneys that we interviewed told us anecdotes mostly about alleging abuse as part of a quest for child support cash, not stories about actual physical abuse. To some extent this may be because we interviewed litigators who work on cases in which at least one party has enough money to pay their fees. Thus this chapter is about the use of domestic violence allegations in divorce, custody, and child support litigation where the primary goals of the lawsuit are financial.

[We don't mean to minimize the prevalence of domestic violence in American society. However, it seems to be concentrated in households where there isn't enough money to hire a $400/hour attorney. "When Violence Hits Home: How Economics and Neighborhood Play a Role" (U.S. Department of Justice, 2004) says that "Women who live in economically disadvantaged communities and are struggling with money in their own relationships suffer the greatest risk of intimate violence. … Women living in households with high incomes experienced less violence at the hands of their intimate partners … As the ratio of household income to needs goes up, the likelihood of violence goes down." A Troubled Marriage: Domestic Violence and the Legal System (Goodmark 2011, NYU Press) states that "A recent study of [domestic violence criminal] court-involved men in Albuquerque, New Mexico, found that more than half of the men lacked high school diplomas, 36 percent were unemployed at the time they came into contact with the court, 61 percent made less than $20,000 per year, and 88 percent earned less than $30,000 per year."]

Can Americans be trusted?

What happens when you set up a system in which Americans can get cash by doing something less than honest? From "The Voyeur's Motel" (New Yorker, April 11, 2016):

These experiences prodded Foos [a motel manager] to concoct an “honesty test.” He would leave a suitcase, secured with a cheap padlock, in the closet of a motel room. When a guest checked in, he would say to Donna, in the guest’s hearing, that someone had just called to report leaving behind a suitcase with a thousand dollars inside. Foos then watched from the attic as the new guest found the suitcase and deliberated over whether to break the lock and look inside or return the suitcase to the motel office.

Out of fifteen guests who were subjected to the honesty test, including a minister, a lawyer, and an Army lieutenant colonel, only two returned the suitcase to the office with the padlock intact. The others all opened the suitcase and then tried to dispose of it in different ways. The minister pushed the suitcase out the bathroom window into the bushes.

Real-world Restraining Order Strategy and Tactics

The nitty-gritty of a divorce lawsuit that starts with a restraining order is explained in

"The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act" (Rutgers Law Review 57:3):

A wife willing to commit perjury can spend months or even years with her lawyer planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding and preparing the presentation of her case, while an accused husband is given ten days or less to prepare a defense. Ten days is not nearly enough time to prepare for a FRO hearing. It is not even enough time for most defendants to fully understand the gravity of the situation they're in. The lack of time is compounded by the stress, alarm, and confusion caused by suddenly and without warning being thrown out of the marital home by armed police officers. … He is allowed to take his wallet with him but is prohibited from taking his checkbook because the police officers fear that he might maliciously exhaust the marital assets … He has not been advised he has the right to have an attorney represent him, and doesn't realize he needs one. He couldn't afford one if he did, but he has no right, unlike a criminal defendant, to be provided with free counsel.

This summary was consistent with what we heard from practicing litigators and also from consumers. Either because the plaintiff has already retained a divorce litigator or has obtained assistance from a taxpayer-funded domestic violence organization, the first two hearings are generally plaintiff+attorney on one side of the judge and either nobody ("ex parte") or just the defendant on the other side. Maryland legislator Jill Carter explained this: "There is an organization called the House of Ruth. They represent the woman for free and get her an automatic ex parte order barring the man from the house, the kids, and her place of work. He can come back five days later to challenge the order." Then the House of Ruth lawyer and his lawyer argue about whether it was a legitimate order to have granted? "No," says Carter. "A lot of my constituents can't afford lawyers and this is a civil proceeding, not a criminal one. So he is not entitled to a public defender. So she is represented by an attorney and he is not."

The plaintiff is able to bring better evidence to these hearings because the plaintiff is the only one who knows that the proceeding is coming and therefore has had time to prepare. "I had one where the wife slapped herself in the face right before the police showed up," said an Arkansas litigator. "The police took my guy to jail after seeing the mark on her face. We learned the truth because the parties reconciled and she said 'I knew that I could get you out of the house and I was mad because you were having an affair with the nurse.'" Interviewees report that future plaintiffs are counseled to push and shove the future defendants around in the house in hopes that the men will rise to the bait and throw an actual punch. In "one-party recording" states, future plaintiffs are encouraged to start arguments and then activate a smartphone audio recording app when the future defendant begins to yell back. A bruised face or a threatening-sounding recording means a slam-dunk victory.

Violence Against Women Act of 1994

The Violence Against Women Act of 1994 (VAWA) made it easier to prosecute domestic violence, partly by eliminating traditional protections afforded citizens accused of crimes and partly by providing about $1.6 billion per year in funding to states and non-profit organizations to assist them in prosecuting alleged abusers. Grants are administered by the U.S. Department of Justice's Office of Violence Against Women. The bill was reauthorized in 2013. Attorneys reported that alleging criminal domestic violence could be a useful tactic for a plaintiff seeking a larger child support order via negotiation. How does it work?  We interviewed a soft-spoken father on an 11-month-old boy going through hearings as a criminal defendant: "The prosecutors around Worcester [Massachusetts] got a grant from the federal government to prosecute violence against women," he noted, “which means that they now go after every man who is accused because they get paid for it. So now all of the child support plaintiffs in Worcester are going to the police saying that they have been beaten up.” His plaintiff alleged that he had grabbed her wrist. “She has no evidence other than her own statement. She doesn’t have any witness to say that I ever yelled at her, threatened her, or touched her. She has no marks on her skin. But anyway my lawyers say that I will still have to go through at least four court appearances as an accused criminal. She offered to drop the charges if I would pay what she is demanding, but it works out to more than 100 percent of my after-tax income." [We followed up a few months later. The father had agreed to pay more than he had been previously ordered to. The mother, whose income was about the same as his, had dropped her abuse allegations and agreed to let their child have a roughly 50/50 schedule.]

"Federal Law and Domestic Violence: The Legacy of the Violence Against Women Act," a 1999 article from the Journal of the American Academy of Matrimonial Lawyers, gives an overview of the federal law from the perspective of divorce litigators. The Tucson-based authors, Karp and Belleau, characterize themselves as "representing high net-worth individuals involved in complex marriage dissolution actions." They explain that the VAWA as enacted by Congress gave a wife the ability to launch, along with her divorce lawsuit, a simultaneous federal court lawsuit alleging that her civil rights had been violated:

"Almost every divorce case carries with it some form of domestic tort, and thus, the filing of such a claim must be considered in all divorce cases. … the threat of a domestic tort … can be a bargaining chip for a larger share of the marital estate, or higher spousal maintenance payments at the negotiation table. … In drafting the cause of action, a practitioner is limited only by his or her imagination. … If the defendant has 'deep pockets', litigation can be practical, often resulting in large verdicts."

On federal court versus state court: "One advantage of the VAWA was a plaintiff’s ability to file in federal court, which has rules of evidence preferable to a plaintiff’s case." The authors cite an advantage that "evidence of a plaintiff's sexual disposition or history is generally not admissible … [but] a [plaintiff] may introduce evidence of the defendant's prior bad acts." Another cited advantage is that plaintiffs can win attorneys' fees and urge that "states should provide for the recovery of attorneys fees when a plaintiff sues under the legislation."

Why doesn't every divorce lawsuit spawn a parallel federal court lawsuit under the Violence Against Women Act? The article explains that the U.S. Supreme Court struck out the "civil remedy" provision of the law. The authors close with "Attorneys who handle family law … must be aware of the benefits of filing claims or including counts under the VAWA despite its being found unconstitutional by the Supreme Court, as many states may enact similar legislation with similar provisions." What was the constitutional issue with the VAWA? The case was United States v. Morrison and it hinged on (1) whether the Interstate Commerce clause of the Constitution was broad enough to support the use of federal courts, and (2) whether state justice systems were discriminating against women making domestic violence claims on the basis of their gender, which would be a violation of the Fourteenth Amendment's Equal Protection. The Supreme Court was willing to assume that men who were violent toward women were "motivated by gender" but then noted that "gender-motivated crimes of violence are not … economic activity."

A 2014 paper, "Same-Sex Domestic Violence: Prevalence, Unique Aspects, and Clinical Implications" (Shields and Carroll; Journal of Sex & Marital Therapy) suggests that the Supreme Court was wrong about the motivation for domestic violence. The authors, after reviewing dozens of academic studies, conclude that "Current prevalence rates of SSDV [same-sex domestic violence] are considered similar to slightly higher than OSDV [other-sex DV] rates, with the exception of a secondary data analysis indicating SSDV rates as double that of OSDV (Messinger, 2011)." In other words, it is possible that people who share an apartment or house sometimes get on each others' nerves enough that punches are thrown, regardless of any gender issues:

Survival in space is a challenging endeavor. As the history of modern warfare suggests, people have generally proven themselves unable to live and work together peacefully over long periods of time. Especially in isolated or stressful situations, those living in close quarters often erupt into hostility.

-- Dept. of Speculation, a novel by Jenny Offill (2014)

What not to try

One tactic that can backfire is the use of child pornography. According to the Indiana (PA) Gazette, "Woman guilty of downloading child porn," August 20, 2014, Meri Jane Woods of Clymer, Pennsylvania was successful in obtaining a Protection from Abuse order that ended her husband's access to the family home. To cement her victory she placed child pornography onto a personal computer and, without bothering to update the timestamps on the files, turned it over to the state police, alleging that her husband had performed the illegal downloads. In investigating the crime, however, the police "almost immediately ruled out Matthew Woods’ involvement by finding the images date-stamped between Aug. 11 and 14, 2013. Matthew Woods had been forced from the home before that time by a protection-from-abuse order, prosecutors told the jury." As downloading child pornography for any reason is illegal, Ms. Woods was convicted of a felony that carried a possible sentence of seven years in prison (she was apparently not charged with the federal offense of receiving child pornography, which carries a mandatory minimum sentence of five years). What finally happened? A December 16, 2014 Associated Press article, "Wife who used child porn to frame husband gets jail time," notes that she "must spend six months to two years in county jail" and that "Woods continues to deny wrongdoing saying, 'I only wanted to protect my children.'"

Statistical Prevalence of Domestic Violence and Child Abuse

Depending on the state, attorneys told us that 25-100 percent of divorce cases that they handle involve an allegation that one partner was somehow abusing the other and/or the children. How common is domestic violence when measured by those without a financial incentive? Father-Daughter Relationships: Contemporary Research and Issues (Nielsen 2012): "no study to date using a representative sample and measuring severe violence has found more than two million women a year being abused, which is 1.5% of the female population over the age of 18 (Gelles, 2007). … 158 million of the 162 million females over the age of 12 are never—and never will be—physically abused by a man they are dating, living with, or married to. Put differently, for those women who are married, 1% were reported as victims of domestic violence according to the U.S. Justice Department’s crime statistics."

The U.S. Bureau of Justice Statistics reported that "Between 1993 and 2002 the rate of family violence declined [from 5.4 per 1000 persons aged 12 or older to 2.1 per 1000]. … The downward trend in the rate of family violence mirrored the overall downward trend of all violent crime during the same period." (Family Violence Statistics, June 2005 (most recent available), NCJ 207846). As of 2008, Americans actually charged in criminal courts with domestic violence were more likely to be prosecuted, convicted, and incarcerated than other kinds of felony defendants (BJS press release).

Accepting the broad definition of "abuse" that is used by family courts, are men more likely to abuse women or vice versa? Researchers at the University of Cumbria, led by Elizabeth Bates, reported in "Testing predictions from the male control theory of men's partner violence" (Aggressive Behavior, 40(1), January 2014) that "women were found to be more physically aggressive to their partners than men were." Father-Daughter Relationships: Contemporary Research and Issues (Nielsen 2012): "females generally engage in more relational aggression than males (Baumeister, 2010; Chesler, 2001; Eliot, 2009). Relational aggression includes social ostracism, vicious gossip, verbal harassment, passive aggressive manipulation, and verbal bullying—the same kind of behavior that gatekeeping mothers often use to limit the father’s relationship with their daughter. The victims of this relational aggression often become extremely anxious, depressed, insecure, withdrawn, and timid—again, the very behaviors we often find in fathers who want to be more involved with their daughters, but are being shut out by the mother’s gatekeeping. Relational aggression includes the kinds of tactics that many gatekeeping mothers use to demoralize and marginalize fathers."

How about abuse of children? The Child Welfare League of America's statistical summary, "The Nation’s Children 2010" indicates that approximately one percent of America's children are abused or neglected in some way. Of this 1 percent sample, most were simply neglected, e.g., left unattended in a house or car. 10.8 percent of the 1 percent sample were physically abused and 7.6 percent were sexually abused. In other words, the prevalence of physical and sexual abuse is about 0.18 percent.

Which parent perpetrates this abuse of 18 out of every 1000 American children? "Mothers are almost twice as likely to be directly involved in child maltreatment as fathers," according to "The Importance of Fathers in the Healthy Development of Children" published in 2006 by Office on Child Abuse and Neglect, U.S. Children's Bureau, U.S. Department of Health and Human Services. How about in divorce court? "If I represent the mother in a custody action I try to insinuate in every hearing that the father is doing something abusive or sexual with the children," said one litigator. Do judges believe these insinuations? "A lie repeated becomes the truth," was the answer.

Note that these official government statistics are disputed by people who work in the domestic violence industry. A Troubled Marriage:

As psychologist Lenore Walker wrote in The Battered Woman, “Battered women are found in all age groups, races, ethnic and religious groups, educational levels, and socioeconomic groups. Who are the battered women? If you are a woman, there is a 50 percent chance it could be you!”

The author, Professor Goodmark, former Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law, explains that a substantial number of women are reluctant to invoke the domestic violence legal apparatus due to fears of losing some of the benefits that their abuser brings, e.g., household income and/or shouldering parenting responsibilities.

As far as data showing that women can be at least as violent toward men as vice versa, Goodmark states in A Troubled Marriage that men and women are hitting each other for different reasons:

"Situational couple violence [where women have been as likely to hit men] might be used to get someone’s attention, to express anger or frustration, or to obtain physical domination in the moment, but it does not involve the generalized control over all facets of a partner’s life that characterizes intimate terrorism. Violent resistance is Johnson’s term for women who fight back against their abusive partners; this, too, is violence without a control motive, violence used to defend against or delay an attack, to send a message about the woman’s displeasure at being physically abused, to retaliate for past abuse, or to escape from a violent relationship. …  [academic family violence scholars'] claims that women were as violent as men came from studies that equated a push, shove, or slap with more severe violence, like choking or punching, and did not measure other control tactics at all. Feminist researchers, by contrast, surveying shelters, hospitals, police, and courts, were more likely to find intimate terrorism’s typical pattern of coercive control. … Women engage in resistive/reactive violence to escape or stop abuse that they are experiencing or to establish some parity within the relationship that will enable them to protect themselves and/or their children from abuse. … The vast majority of women who use violence do so to defend themselves or their children or to prevent an impending attack. But women cite other reasons as well: to stand up for themselves in an attempt to salvage their self-worth, get their partners’ attention, earn their partners’ respect, and retaliate for threats against their families or their partners’ abusive behavior. … Sociologist Evan Stark argues that women use violence in order to express their identities as beings independent of their controlling partners."

A Troubled Marriage inadvertently calls into question the idea that domestic violence is ubiquitous in the U.S. Professor Goodmark cites disturbing examples of couples in which the man was abusing the woman. However, to populate the pages of her book she was forced to draw from 30 years of cases. If domestic violence affects 50 percent of households, why would an author need to look at more than a one-month period?

Professor Callie Marie Rennison, a criminology expert at the University of Colorado Denver, explained to us that crime of all kinds, including sexual violence and domestic violence, disproportionately affect lower income Americans and may be underreported: "I've done a 180 on this during my career," she said. "Now I think 'Why would anyone want to report a crime? What would they gain?'" Even if not seeking custody and child support, wouldn't a restraining order be something for a domestic violence victim to gain? "Restraining orders don't tend to make people safer," Rennison responded. "It is more of a paper trail." What could we as a society do to reduce domestic violence then? "We would need to start with children and get them to understand that you don't put your hands on other people in a violent way," said said. "Also train young people that the first time someone hits them they need to leave."

The Standards Applied

The standard for obtaining a restraining order, which will result in exclusive use of a house, exclusive access to children, and a stream of child support cash, is lower than the "beyond a reasonable doubt" standard of a criminal prosecution. A judge is supposed to grant a restraining order based on the "preponderance of evidence" (51 percent likely or "more likely than not"). As noted above, the defendant in a restraining order action is unlikely to have an attorney. The lower standard of proof and the lack of an attorney for the defendant makes it much easier for a party seeking a restraining order to prevail than it would be for the government to convict the defendant of a crime.

This perspective is consistent with "Criminal Law Comes Home" by Jeannie Suk, now a Harvard Law School professor, from the Yale Law Journal in 2006:

The civil protection order, the “grandmother of domestic violence law,” has constituted a crucial step in the criminalization of DV.

The vision for this remedy grew out of the definition of battering within the larger framework of a feminist critique of marriage, wherein DV [domestic violence] was a form of control and domination of wives. A symbol of the material and psychological difficulties of leaving abusive marriages, the marital home represented the physical locus of the gendered power inequality that was expressed in violence. Because, historically, the home had been the domain of husbands’ control, giving women the legal means to take control over the home by excluding husbands carried significance beyond the practical aspects of remedying an abusive situation. The protection order was to be a legal tool that would transform the home from a wife’s prison into her fortress. It would ban the husband from the space in which his power over her found expression.

The protection order enables a particular mode of criminalization that is an important component of the criminalization of DV. It criminalizes conduct that is not generally criminal—namely presence at home—in order to punish or prevent the target criminal conduct.

In a section titled "De Facto Divorce", Suk goes on to describe how a person can obtain an instant de facto divorce without alleging any physical violence or injury:

In this jurisdiction [New York County, which includes Manhattan], a routine practice in the prosecution of misdemeanor DV exemplifies the expanding criminal law control of the home: the prosecutorial use of criminal court protection orders to seek to end intimate relationships. Prosecutors’ deployment of protection orders in the normal course of misdemeanor DV prosecution amounts in practice to state-imposed de facto divorce.

By definition, misdemeanors do not involve serious physical injury. Many DV misdemeanor cases charged in criminal court do not allege physical harm. The harm alleged may instead be psychological, financial, or to property. Common charges in cases in which no physical violence is alleged include criminal mischief (damaging property), larceny, criminal contempt (violation of a protection order), and harassment (a violation, not a crime). Because most DV cases are misdemeanors, my discussion here primarily concerns the enforcement of misdemeanor DV, for which serious physical injury is not at issue.

DV orders are generally requested and issued as a matter of course. When the protection order goes into effect, the defendant cannot go home or have any contact with the victim (usually his wife) and his children. If the defendant does go home or contact the protected parties, he could be arrested, prosecuted, and punished for a fresh crime. This is so even if the victim initiates contact or invites the defendant to come home.

Court-ordered separation becomes a goal of prosecutors in bringing criminal charges—a substitute for, rather than a means of, increasing the likelihood of imprisonment. Punishment as a goal can be put on the backburner because separation is a more direct and achievable way to stop or prevent violence.

… de facto divorce does entail de facto arrangements regarding custody, visitation, and support—that is, no custody, no visitation, and no support.

Incentives for Judges to Grant Orders

The attorneys that we interviewed reported that judges grant restraining orders, depriving a defendant of the use of a house and access to children, even when the 51-percent standard wasn't met. They estimated that the standard for obtaining a restraining order was closer to a 5-percent risk of domestic violence.

"Erring on the Side of Hidden Harm: The Granting of Domestic Violence Restraining Orders" (Heleniak, Partner Abuse 1:2, 2010) explains the phenomenon. The journal article notes that new judges are urged by trainers to be "cautious" where cautious means to grant orders: "It’ll be the one time that you don’t grant the restraining order that you’ll be tomorrow’s headlines." A judge is quoted telling a defendant "If I have to make a mistake I have to make a mistake in favor of safety … and if I make a mistake that’s going to hurt somebody, I’ll never forgive myself." The head of the Massachusetts Bar Association was quoted in 1993 saying that restraining orders are granted to "virtually all who apply, lest anyone be blamed for an unfortunate result." What's the "hidden harm" of the title that judges don't worry about? That is the suffering of a child who is separated from a defendant parent for months or years, depending on how slowly a state's courts work, based on a false allegation. Attorneys interviewed confirmed the paper's perspective on the insignificance of the hidden harm: "Nobody in the system cares if a child doesn't see her father for a couple of years," was a typical summary.

David Heleniak, an attorney in New Jersey, closes the article by suggesting that requests for restraining orders be heard by juries: "Facts should be determined by several fresh, open minds, not one with a career on the line. Jurors, relatively anonymous one-time actors in the judicial system, are far less concerned with extraneous matters than are judges."

We interviewed Heleniak in October 2014 and asked him why judges would care about negative publicity. Aren't they appointed for life? "You're thinking of federal court," responded Heleniak, "State judges are typically elected or must be reappointed periodically. In New Jersey, a judge must be reappointed after seven years and then sits until age 70. Also remember that judges want to climb the bureaucratic ladder. Certainly they don't want to be sent to landlord/tenant court."

Heleniak's journal article was consistent with what we were told by our interviewees. "Why is it so easy to win a divorce-by-restraining-order?" asked one attorney, rhetorically. "Put yourself in the position of the judge. Does he want his name in the newspaper because he denied an order and then the husband went back home and shot the wife who sued him? It looks a lot better for the judge if the order was issued and the guy shot the plaintiff despite the order. By contrast, no reporter is going to cover a case where a guy loses the house and the kids because of an order that wasn't backed up by any evidence. That's dog-bites-man, not man-bites-dog."

Why Judging Domestic Violence Allegations is Tough

Is it all the judges' fault? Attorneys that we've interviewed suggest that it might not be, especially now that the definition of "abuse" has been broadened to include emotional and verbal abuse. A person testifying about his or her experience of emotional or verbal abuse tends to be credible because no other witness could be an authority on how an event might have felt. "To some people," said a Pennsylvania litigator, "an argument is abuse."

A classic paper on this subject is "Factitious Sexual Harassment" (Feldman-Schorrig 1996; Bulletin of the American Academy of Psychiatry and the Law 34:3). Factitious? According to the Cleveland Clinic (web site, 2014), "Factitious Disorder is a mental disorder in which a person acts as if he or she has a physical or mental illness when, in fact, he or she has consciously created their symptoms. … Those with Factitious Disorders have an inner need to be seen as ill or injured, but not to achieve a concrete benefit, such as a financial gain. Individuals with Factitious Disorder are even willing to undergo painful or risky tests and operations in order to obtain the sympathy and special attention given to people who are truly ill. … Many people with Factitious Disorder may also suffer from other mental disorders, particularly personality disorders. People with personality disorders have long-standing patterns of thinking and acting that differ from what society considers usual or normal. People with personality disorders generally also have poor coping skills and problems forming healthy relationships."

Dr. Feldman-Schorrig looked at the intersection between factitious disorders and sexual harassment or abuse claims. Here are some excerpts from her paper:

some women who file claims are motivated by the need to portray themselves as victims

adult women who have experienced childhood sexual abuse … retain a sense of victimhood [and may] be motivated to file fictitious sexual harassment claims by a need for external validation of their inner experiences.

obtaining sympathy probably constitutes one of the intrapsychic motives that drives some women to complain of sexual harassment.

Some women characterologically harbor a great deal of anger and are constantly looking for opportunities to release it. … Projection of diffuse anger onto specific male targets, who are then viewed as abusive, represents one of the factors that has been postulated to account for factitious rape. … it is far easier to deceive oneself into the belief that one is being harassed than raped.

a woman with a history of childhood sexual abuse may be motivated by repetition compulsion to reenact the victim role in her relationships with men;

In other words, some people are motivated to portray themselves as victims, even when the cash rewards for being a victim are small. Because they come to believe in their status as victims, their testimony sounds truthful and it is actually truthful from the victim's perspective. "People with borderline personality disorders love to come into court and talk about how they are being abused," said one attorney, "and then the Legislature  encourages them by telling judges to give credible-sounding abuse victims sole custody and up to millions of dollars in child support cash."

The large emotional and cash rewards that state legislatures offer to people who say that they've been victims of abuse might not create problematic incentives as long as judges are good at their jobs, i.e., hearing evidence and figuring out who is telling the truth. If we have faith in our judges, therefore, why should we worry that we are rewarding liars with children and cash? "People who are crazy and sociopathic are great witnesses," said one attorney with more than 20 years of experience in the courtroom. "They can lie without batting an eye and sound completely credible. That's why con artists thrive. If we were good at assessing credibility none of us would ever get ripped off."

Lawyers assessing credibility

"I was a feminist in college and got into this to help women and children escape domestic violence," one lawyer told us. "But after a few years I learned that women who are actually being abused don't hire lawyers. They just pack up the kids and run away to a relative's house in another state. … The only women who hire me are ones who want money."

"All of my 'abused clients' are lying," said another lawyer. "They've been told by their friends or other attorneys that I'm not supposed to lie in court. They're supposed to lie to me and then I'm supposed to find what they say credible and repeat it to the judge. Sometimes just for fun when a new plaintiff client tells me that she is afraid of the high-income middle-aged white guy that she lives with and wants me to help her cash out I say 'Remember that alimony and child support terminate on death. Do you really want to put this scary violent person in a situation where if you die he saves a couple of million dollars? Where if your joint child dies he will also be a million dollars ahead?'"

The above perspective is not universal within the industry. "Divorce lawyers have an incentive to find their clients' domestic violence allegations credible," noted a commercial litigator, "because that way they get to characterize what they're doing as a noble effort to fight domestic abuse. Otherwise they'd have to introduce themselves by saying 'I help people get millions of dollars without working.'" James McLaren, the President of the American Academy of Matrimonial Lawyers, confirmed this point of view with his April 14, 2015 Huffington Post article "When Divorce and Domestic Violence Collide":

… 32 percent of the [senior divorce litigators] responding [to a survey] have noticed an increase in domestic violence issues throughout the past five years …  36 percent have noted a rise in divorce cases involving restraining orders,

One of the first steps begins with listening closely to people going through divorce who may be experiencing domestic violence. Domestic violence does not always mean physical violence. … Family law attorneys can help by offering the kinds of support, resources and advice that can really make a difference. … Once the attorney begins to thoughtfully ask questions along the lines of … Do you always feel safe at home?  … Do you have access to spending money? … you and your attorney will have a much clearer picture of the kind of home environment you have been living through and the best ways to move the divorce forward for you and your children.

From there, a nonjudgmental assessment can be put together with tactful conclusions, such as, "What you are describing to me sounds like it could be abusive behavior." This can also involve explaining to the person what abuse is and how it doesn't always involve suffering physical marks and injuries.

Abuse Allegations at the Divorce Trial

The most dramatic use of the domestic violence apparatus occurs when a party is obtaining an instant de facto divorce, as described above. However, even in situations where a case proceeds at a stately pace through the divorce system to trial, our interviewees told us that abuse allegations can be valuable.

An important "slow" use of abuse allegations is in obtaining a favorable, and profitable, custody award. This becomes particularly important in the handful of jurisdictions that have 50/50 custody presumptions because domestic violence is a standard escape clause. From our Alaska chapter:

[About 7 years ago] a well-meaning legislator added a statutory exception [to the 50/50 custody presumption]. If a litigant can establish that she has been physically abused or the children have been sexually abused then she can obtain sole custody." Why does [Pam] Sullivan say "she"? "I have never seen a man try this." How about women? "Either there has been an epidemic of abuse in Alaska since this statute was amended or a lot of women are lying. In about 25 percent of the cases now the man is alleged to be a physical or sexual abuser." What kind of evidence does a woman need to prove that she or her children were abused? "Nothing beyond her word. The judge is able to find that her own testimony is credible. However, there is a trend toward skepticism. Judges can't help but notice the increase in allegations of physical and sexual abuse."

Also, in both fault and no-fault states, allegations that a plaintiff has suffered some sort of harm at the hands of the defendant are often used to justify demands for more alimony, larger child support payments, or a favorable division of property. Thus, according to the attorneys that we interviewed, the divorce courts in most states also function as tort venues with much lower standards of evidence. "If a woman is raped, she can go to the police and they will investigate and maybe the man will be convicted beyond a reasonable doubt after a jury trial where sworn witnesses give testimony and are cross-examined," one lawyer said, "or she could sue in a civil court for battery [a tort] and get money after a jury trial with witnesses testifying. These can be tough hurdles to clear. But in family court if she tells a convincing story, or if her lawyer darkly hints at some sort of story, she gets paid for her suffering."

"Essentially U.S. states are operating a tort compensation system in which there are no witnesses, no cross-examinations, no jury, and no right of appeal," noted one lawyer. "And the winner gets the children."

Indirect Abuse Allegations

A plaintiff trying to get millions of dollars is not necessarily the most credible witness. Are there other ways for attorneys to bring abuse allegations into the courtroom? A Minnesota attorney explained one common tactic: "She can go to a therapist and tell a story there that will enable the therapist to then come in and testify that the mother is an abused woman [based purely on what the therapist has heard in her office and without the therapist ever meeting the father]."

"A standard tactic is getting the defendant investigated as a child molester by DCF [Department of Children and Families]," noted a Massachusetts attorney. "In case the social workers don't play along, though, the plaintiff will want to be able to deny that she initiated the process. Attorneys therefore will let their clients know that physicians and psychologists are 'mandatory reporters' to DCF. So the mother lets an apparently sincere-sounding concern slip to the pediatrician. 'Little Amy acts funny after she comes back from weekends with Daddy and is always touching herself.' The pediatrician's report kicks off the DCF investigation. The divorce lawsuit defendant now finds that he is the target of a potential criminal sexual abuse investigation."

What good is that if the state agency can't confirm the allegations? "Just putting the guy through an investigation is good leverage in persuading him to settle the case in favor of the mother," responded the attorney. "If the case goes to trial, the plaintiff will disavow the DCF report and play innocent by saying that it was the pediatrician who made it, not her." Won't she have to admit on the witness stand that she did this to get a strategic advantage in her divorce lawsuit? "The father's lawyer can't ask her if she learned about using DCF as a litigation tactic from her attorney because that violates attorney-client privilege." We asked a DCF social worker to share her experience regarding whether women in multi-million dollar divorce lawsuits were prone to reporting the father for sexual abuse of the children. "They all do that," was her response. "We don't typically take the time to investigate once we learn that the person reporting the abuse has a large financial stake in the outcome."

"There is not much that a custody lawsuit defendant can do about reports to CPS (Child Protective Services) other than endure it," said a West Virginia litigator. "The process is anonymous and CPS is required to investigate every one. After 10 or 13 allegations the investigators are just going through the motions." What kinds of reports are typical? "People often report neglect, e.g., 'dirty house, dirty kids'."

One consequence of making reports to state agencies is that some of a plaintiff's litigation costs are shifted onto taxpayers who fund the salaries of social workers to investigate these claims. We couldn't find an authoritative source for the percentage of U.S. investigations of child abuse that are initiated by family court litigants. However, a Canadian Parliamentary "Report of the Special Joint Committee on Child Custody and Access" (December 1998) cites estimates ranging from 25-60 percent of the abuse investigation caseload for Canadian government agencies relates to divorce and custody litigation. How much of this time and effort was spent investigating actual abuse? "In June of 1996, executive at Winnipeg CFS [Child and Family Services] also admitted that only 15% of allegations made in divorce cases were likely true."

The Canadian child support formula make obtaining custody of a single properly planned child more lucrative than going to college and working. A false abuse allegation can be an important step to securing the cash. University of Ottawa professor Janice Fiamengo points out in our Rationale chapter that "even pretty decent people would be tempted by the rewards handed out." Recognizing that false allegations are costly to investigate, the report says "Members of this Committee hope that reducing conflict in divorce will reduce the incidence of intentional false allegations." Thus the committee proposed leaving in place the multi-million dollar cash rewards for "intentional false allegations," but hoped to reduce such allegations via a one-evening class.

Domestic Violence and Social Acceptance

A psychologist told us that "around the time of a divorce, women in bedroom suburbs where most houses are occupied by married couples will spread the word that they are being abused." What's the legal significance of neighborhood gossip? "She expects to get the house and stay in that community with the kids. It keeps the neighbors from asking whether she's having an affair or if she married for the money. Instead of being a gold digger or adulteress who broke up the children's home, she's a victim entitled to sympathy from neighbors."

Interaction with Immigration Law

“One of our au pairs wanted to get a green card and stay in the U.S., but her boyfriend was also a foreigner so it wouldn’t have worked to marry him,” said a friend in Massachusetts, the father of twins. "She convinced a young guy that she was in love with him and got him to marry her. Then she had the boyfriend punch her in the face. She showed the black eye to the police, got a restraining order against her husband, and had him kicked out of their house." How did he know? "I am the administrator of the shared family Windows machine so I was able to look at all of her email." How did that help her get a green card? "Her email included months of correspondence with divorce and immigration lawyers regarding the Violence Against Women Act. She’d researched a fast-track green card policy for abused women." (see http://www.uscis.gov/humanitarian/battered-spouse-children-parents) Did it work? "She got the green card." (She later got a lucrative financial settlement from the husband after suing him for divorce.)

Legislative Tweaks

Not all legislative change has been in the direction of making it easier to prove domestic violence or getting more benefits from domestic violence allegations. California, for example, passed a law encouraging, but not requiring, judges to punish parents who make abuse allegations that the judge believes to be false. In theory, a false allegation could lead to reduced parenting time and therefore reduced child support payments. However, the attorneys that we interviewed said that these penalties were not, in fact, applied by judges.

Trends

A Troubled Marriage points to where advocates for domestic violence victims would like to take the system.

The book notes that changes have been driven by the changing beliefs and in-court testimony of psychologists regarding the question of "Why do women stay with abusive men?" In the 1960s and 70s the answer was "some women are masochists." In the 1980s and 90s the idea of "learned helplessness" took over, leading to an emphasis on legal remedies that would separate the man and woman, thus giving the woman the opportunity to build a new life without the abuser. When women falsified this theory by getting back together with the men they'd accused of abuse, a new theory was developed by "governance feminists" (as opposed to "equality" or "dominance" feminists) that women should have the ability to choose to stay with abusive men but get help from the legal system so as to discourage these men from continuing to abuse.

It is not only men who are unhappy with the current assembly-line domestic violence system in which judges try to figure out "who hit whom?" in 10-minute hearings. Goodmark:

Advocates for women subjected to abuse began to focus on control as the motivation behind men’s abuse early in the battered women’s movement. In the early 1980s, social work professor Susan Schechter coined the term “coercive control” to describe the constellation of behaviors used to restrain women’s liberty and monitor their behavior. Throughout the 1990s, sociologist Evan Stark refined the theory of coercive control, reconceptualizing the intention of abusive behavior and the role of abuse in control.

Economic control includes tactics like preventing women from working, taking and withholding women’s resources from them, dictating how money is spent, and requiring strict accountability when money is spent. … Men control their partners by interfering with, even terminating, their pregnancies. … Creating an unwanted pregnancy is another means of control. … Impairing a woman’s spiritual life, self, or well-being can be a form of abuse as well.

Based on the work of Stark and others, law professors Deborah Tuerkheimer and Alafair Burke have each proposed a new crime of domestic violence based on the concept of coercive control. Tuerkheimer’s crime of battering would require a finding that a perpetrator had intentionally engaged in a course of conduct that he knew or reasonably should have known would result in establishing substantial power and control over another. The course of conduct must involve two acts that are illegal under the criminal code. Tuerkheimer argues that defining the crime of battering in this way would enable judges and juries to consider the context in which the instant offense has occurred, allowing prosecutors to offer evidence of other kinds of abuse—emotional/psychological, economic, reproductive, spiritual—that are not criminal in order to establish the existence of coercive control within the relationship.

In a woman-centered system, abuse would be defined by the woman’s subjective experience of her partner’s behavior. In both the civil and criminal systems, the law would provide redress for women who experienced a loss of autonomy, liberty, or self-direction as a result of the actions of a partner, regardless of that partner’s intent and without requiring physical harm or the threat of physical harm as a predicate. In that framework, spiritual abuse or reproductive abuse would carry the same weight that physical abuse currently does, so long as a woman experiences a restraint on her liberty as a result of that abuse. Such a framework acknowledges both the complexity of women’s experiences of abuse and the importance of context in determining what constitutes abuse. Defining domestic violence around the woman’s experience would allow the legal system to move away from narrowly drawn categories of abuse toward a richer understanding of how myriad actions and omissions can constitute abuse. A woman-centered system, moreover, creates space for judges to explore how women’s intersecting identities affect their experiences of abuse.

Note that judges who identify as feminists may already be hearing cases informed by the above standards. At motion hearings attorneys can set the stage for trial by asserting that the man attempted to control the woman during the marriage and was continuing to attempt to control her during the litigation. At a trial, witnesses can testify regarding years-old recollections of  behaviors, feelings, and motives, none of which involved physical violence but which a judge could use as the basis of a finding that a woman has been a victim of domestic violence and was therefore entitled to sole custody of children, for example.

If abuse allegations are the key to a successful divorce lawsuit, can we protect actual victims?

Attorneys whom we interviewed reported that the domestic violence prevention system often works wonderfully for divorce litigants making false claims. Unfortunately, the same cannot be said for actual victims of domestic violence, whose complaints tend to be drowned out. A Troubled Marriage:

Judges question the ulterior motives of women bringing domestic violence cases—"they are often considered manipulators and liars intent on using the court to achieve some wrongful purpose, such as revenge or advantage in a divorce case." Judge Susan Scott of the Superior Court of New Jersey was uncommonly candid in discussing this problem. She admitted that it was difficult to discern which claims of domestic violence were true because the "word around the underground" was that domestic violence claims were fabricated to evict men from their homes using protective order statutes.

Liz Mandarano, a divorce lawyer with a self-described "feminist camp allegiance", wrote an April 13, 2011 Huffington Post article "The Worst Thing A Woman Can Do In Divorce Proceedings - The Abuse Of Orders of Protection":

it is also an unfortunate truth that because they are incredibly easy to obtain, orders of protection are misused, often against men. And this false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.

There are between 2 and 3 million temporary restraining orders issued in the United States annually. Despite their huge impact on a person's emotional and financial well-being, in order to receive a temporary "stay away" order of protection, one needs only to allege that he or she "feels" threatened by their partner. There does not need to be any history of domestic violence whatsoever. There does not have to be an actual verbal threat of domestic violence either. Likewise, there does not need to be evidence of a major overt act, such as stalking or purchasing a weapon.

These orders are granted with barely any accountability as to the facts alleged, although they often include a "stay away" provision from minor children. When a false or exaggerated allegation results in a stay away order, many innocent men are suddenly tossed from their homes without any notice. Additionally, they face a sudden and profound financial stress-- they must quickly set up another residence to provide for their needs as well as to prove to a court that they have adequate provisions for future child visitations. Many rapidly find themselves having to pay for two households to avoid being accused of shirking their responsibilities. Furthermore, these men often have lost access to necessary legal and personal papers necessary to function or defend themselves. It is a well-known fact within the matrimonial legal community that many lawyers and their clients use these orders of protection to gain a strategic advantage over their spouse from which it is difficult to recover. And since no judge wants to be the one who "gets it wrong" leading to a tragic result, these orders are easily obtained.

It sets a precedent for custody. Joint custody is presumed. However, if a permanent order of protection is issued containing a finding of domestic abuse, that finding cannot later be disputed. As a result, in many jurisdictions, there is suddenly a rebuttable presumption that the victim should have legal custody. Also, the longer a parent's access to a child is limited, the less likely that person will be deemed the primary caregiver.

It creates a windfall for the attorneys. Once a stay away order is issued, the parties cannot communicate with each other. All communications must therefore be carried out via the parties' lawyers. As a result, there is a strong incentive for the less ethically minded lawyer to protract a legal battle by encouraging this tactic.

Attorney Mandarano makes a variety of practical suggestions for making the domestic violence system less tempting to false claimants. These include the following:

Note that some of Mandarano's proposed remedies amount to "patch a problem with litigation with more litigation." But advocates for domestic violence victims say that litigation itself further victimizes abused women. Men and their attorneys file motions that require the abused woman to keep coming back to court either during the divorce lawsuit or following it: "One of the ways men perpetrate domestic violence is stalking through family court," said Joy Silberg, a Baltimore-based Ph.D. clinical psychologist who specializes in treating abused children. "It is very difficult to prove to a judge that this use of family court is a coercive strategy." How do litigators see it? "A typical divorce lawsuit involves claims that most parents would want to defend against," one said. "The plaintiff is asking the judge to take away children, a house, money, and 30-70 percent of the defendant's income going forward. Most plaintiffs end up feeling abused by the system because the defendant doesn't simply hand over the children and write a check." Certainly our interviewees described divorces that stretched out for years and involved a dozen or more motion hearings even when the only issues were financial. It would seem that moving divorce out of the court system and into an administrative process, as has been done in some Scandinavian countries and as has been suggested by some of the litigators we interviewed, would reduce opportunities for abusive men to continue their abuse, because administrative processes tend to be much quicker and cheaper than litigated processes.

See the "Guide for Citizens and Legislators" chapter for a different attorney's idea of how to provide immediate separation and protection for domestic violence victims while also cutting the ties between the domestic violence process and the divorce, custody, and child support process. Her proposal is a no-fault system that would separate parents at either one's request and without a stated reason, but not give anyone a leg up in terms of possession of the house or custody of the children.

Summary

From a variety of attorneys in different jurisdictions we heard variations of the same statement: "The most effective way for a female plaintiff to kick off a divorce, custody, or child support lawsuit is to say 'After I told him that I wanted to leave, he threatened me and now I am afraid of him.'"

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