Can I File for Divorce Without 'Proof' of Abuse? Lawyer Says...

This week, our family lawyers discuss how one Marylander can still file divorce from an abusive spouse, even though they (currently) lack substantial proof of the abusive behavior.

The Question: Can I still get a divorce and file for primary custody based on grounds of abuse, even if I don't have a lot of proof?

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Hi, everyone. I've come to the sad realization over the last several years that I'm going to have to leave my alcoholic spouse. My kids and I are hostages in our own home whenever he drinks, which is 3-4 nights out of the week, and he drinks to the point of yelling, screaming, damaging things in the house, is very verbally abusive to me, and frightens my little girls. I have my first lawyer consultation scheduled, but I couldn't get in until mid-February.
My question is about proving significant alcohol abuse as a reason for divorce as it relates to custody. I want my girls to see their dad, because he loves them and he's a good dad when he's sober, but right now he's not healthy and they're afraid to be alone with him. I would absolutely adjust custody if/when he gets sober.
I can pull credit card records from months ago (and years of it) to show the hundreds of dollars per month he spent, but he started using all cash at the liquor stores in November when he realized that he could tell if he'd bought more than what he said he did based on the credit card total.
(Like, he'd say he bought a six-pack and the charge would be $23, so I'd know he got a larger bottle of Fireball and hidden it somewhere in the house, too.)
So, I can't prove he continues to abuse, although it's only gotten worse every single month.
Is it at all sensible to write down what he's drinking in the meantime? It'd be just my words on a piece of paper, unless I guess I took a photo of all the empties every day as well. And then it's still not really solid "evidence," you know?
Since it's so long until my consult, I didn't want to miss doing it if it's worthwhile, but I also don't want to do this thinking it will help (having to confront how bad he's gotten is really triggering for me) and have it all be for nothing.
Thanks for any insight. I'm so sad that I have to post this.

The Answer: Yes, you can still file for divorce and fight for primary custody without "proof."

We're so sorry that you had to post this question, too.

We hope that you and your family are in a safer place, and your husband has gotten the help he needs to defeat his apparent alcoholism.

In the meantime, you asked if you could file for divorce based on grounds of abuse, then use that to leverage a custody agreement where you have primary physical custody, while your ex would have visitation rights.

Yes, you can certainly file for divorce based on grounds of abuse in Maryland!

However -- as you probably suspect -- that might not be the fastest way to get an absolute divorce from your husband, especially if he doesn't want to cooperate and file a marital settlement agreement to avoid court.

After all, if you claim abuse to separate a father from his children, then you'd have to prove to the court that the abuse occurred, and that you and your kids are at risk.

Luckily, there are many creative ways you and your family lawyer could prove the abuse to the court, including but not limited to:

  • A written record of drinking, as you suggested, along with dates and details;
  • Sending a certified letter to a safe address -- such as your lawyer or a supportive family member -- immediately after an abuse event occurs, detailing the incident, and then do not open after receipt;
  • Comparing the cash withdrawal amounts with previous alcohol expenditures on credit cards, to see if it's the same amount of money going out as before, just in a different format;
  • Taking pictures of any physical damage or injuries that occur due to the abuse;
  • Calling the police to establish official reports of the abuse when it happens;
  • Asking your lawyer to file for an emergency protective order to protect yourself and your children; or
  • Gathering testimony from the family doctor acknowledging his alcoholism, or from family members or friends who can corroborate your story.

(Note that Maryland is a two-party consent state when it comes to recording. That means you'd need his permission before recording any sort of incident involving him. Without his consent, it can't be admitted as legal evidence to prove the abuse.)

The custody and visitation arrangements would be part of the final divorce decree issued by the court during the divorce proceedings. If you and your lawyer can provide sufficient evidence of the abuse, then the court may approve your request for primary custody of the children with monitored visitation.

Our Firm frequently files emergency protective order petitions on behalf of our clients. It breaks our hearts to see Marylanders in this situation. It's lousy for everyone involved, and no one gets any joy from it: Not the spouse being abused, not the kids caught in the crossfire, and not the parent who's struggling with addiction.

Again, we hope that you and your whole family are safe since you asked this question.

Please let us know if there's anything we can do to help.

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Our general disclaimer: We're lawyers, but not necessarily your lawyer, and do not represent the individual who asked this question. We're providing this information for general educational purposes based on the publicly available information provided by the anonymous Internet user. Any number of details may change how this individual's attorney may pursue this legal situation, differently from how we suppose above. If you have a similar question, then you should consult with a lawyer about your specific situation to get a "real" response!