Living Together During The Divorce and Family Violence

It is not uncommon for married couples to live together while a divorce is pending. One of the issues we often have to address for our clients is who is going to live in the marital residence. This can be agreed to, and often one party will agree to move out. However, if there is not an agreement then a judge may have to decide who lives in the marital home during a temporary orders hearing.

Having a divorcing couple living together can lead to confrontation, and it can increase the risk of domestic violence. If you believe that it is dangerous to live with your spouse let your lawyer know immediately. Recently, the Dallas Court of Appeals hearing a case involving an assault between a couple going through a divorce, and still living together.

In that case, Johnelle Hall vs the State of Texas, No 05-18-00424-CR, the couple (Johnelle and Clifton) couldn’t agree on when Clifton (Husband) should move out, or if he should pay child support. The issue was put to a judge at the temporary orders hearing. The judge ruled that Clifton did have to move out, and pay child support. But the judge also gave Clifton two extra weeks to move out. Neither party was happy with this ruling. In family cases, it is not uncommon for both parties to have issues with a judge’s ruling.

After the hearing, Clifton was living in a guest bedroom and Johnelle in the master. Clifton still had to use the master closet and bathroom to get ready for work. One morning while getting ready for work. Johnelle locked herself in the master bathroom. Clifton used force to open the door, and was then assaulted by Johnelle.

Forcing open the bathroom door and Self Defense 

On appeal, Johnelle argued that self-defense should have applied in her case. Johnelle was holding the bathroom door shut and Clifton had use force to open the door. Therefore, Johnelle argued she should have been allowed to use force (self-defense) to remove Clifton. What is self-defense in Texas?

A person is justified in using force against another when and to the degree she reasonably believes force is immediately necessary to protect herself against the other’s use or attempted use of unlawful force. See TEX. PENAL CODE ANN. § 9.31(a). “‘Reasonable belief’ means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42). “‘Unlawful’ means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.” Id. § 1.07(a)(48).

The appellate court noted that the jury resolved this self-defense claim against Johnelle. And that since both parties agreed that it was Clifton’s routine to use the master bathroom and closet, that the jury could have decided it was not reasonable for Johnelle to assault Clifton even if he forced his way into the bathroom.

It should be noted that it is very difficult to overturn a jury’s verdict on appeal in Texas. What Johnelle was doing is called a factual or legal sufficiency challenge, and courts in Texas do not grant those very often. Here is what the Dallas Court of Appeals said-

When an appellant brings a sufficiency challenge on the basis of her claim of self-defense, we do not look to whether the State presented evidence that refuted self-defense. Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref’d) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). Instead, after reviewing all the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and found against the appellant on the selfdefense issue beyond a reasonable doubt. Id.

If you are considering living together with your spouse during a divorce let your lawyer know. It doesn’t always end up with an arrest for assault, but it can lead to increased tensions or hostility.




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