Many of my clients want to accuse the opposing party of psychological and emotional abuse. Others want to allege that a spouse has committed cruelty on the basis of demeaning language and controlling behaviors. These concepts are all but non-existent in Virginia family law.
Wording can make a big difference
Violence, abuse, and cruelty are not synonymous––not legally, in any event. "Cruelty" is a ground for divorce. It is sometimes used interchangeably with the word abuse in divorce complaints. The term "family abuse" is altogether different and is defined in Va. Code 16.1-228 as an act of violence or sexual abuse or the threat of such, usually in the context of obtaining a protective order against the offender. (Virginia does not have "restraining" orders.) "Domestic violence" is usually reserved for crimes committed by one family member against another.
Why do these distinctions matter? Because you may think you have a valid legal grievance that a court can act on, when in fact you have none. And those moments can be very disappointing.
Abuse claims in court
I often receive divorce complaints from a party claiming cruelty and abuse. An annoying number of them denounce my client for "verbal" abuse, for being "controlling," and generally being obnoxious. Even if true, these are not grounds for divorce. Nor for anything else under the law. Cruelty consists of conduct "that tends to bodily harm and thus render cohabitation unsafe" or "involved danger of life, limb or health," according to a 1986 Virginia Supreme Court decision. "Unruly tempers, lack of patience, and uncongenial natures" do not suffice, said the Court of Appeals in another case. Nor will a single act of physical cruelty; the physical act must be "so severe and atrocious as to endanger life," the Court of Appeals held in 1989.
Similarly, if you want a protective order against a spouse, domestic partner, or family member, you must prove "family abuse," which means "any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury." I had a mother who wanted a protective order against the father for pulling his 11-year-old daughter's hair and trying to force her to drink alcohol. The judge was sympathetic, but ruled the father's conduct did not rise to the level of the definition of family abuse.
Stalking vs. family abuse
However, although some judges interpret the term "family abuse" strictly, others will interpret the crime of stalking––which is included in the statutory definition of family abuse––very leniently. Stalking is included the statutory definition of family abuse. If you follow someone, and that person claims they have reason to fear you, there is a good chance a judge will issue a protective order against you, with no more evidence than that. And that could hurt your custody rights and even your employment, especially if you work in law enforcement and/or have security clearance.