How to ensure dismissed family assault is heard as primary fault in divorce trial?

Asked over 1 year ago - Houston, TX

A primary reason I filed divorce was because of a family assault upon me. However Prosecutor just dismissed it for want of prosecution. Furthermore Respondent/Defendant is trying to expunge it expeditiously before divorce trial commences.

My question is, how can I ensure that I am allowed to raise the issue of that family assault as my major claim/fault for the divorce? It happened within two years of filing divorce and the Texas Family Code says it SHALL be considered. However, Rules of Evidence says it cannot be used. I am concerned that I cannot prove fault if I am not allowed to raise that issue.

Attorney answers (3)

  1. Dawn Anne Renken

    Contributor Level 11

    4

    Lawyers agree

    Answered . You can always testify about the incident itself. Even though you don't have a conviction, you can always testify about what happened. You should definitely talk to a lawyer about how to testify.

  2. Lori Elaine Hall Laird

    Pro

    Contributor Level 10

    1

    Lawyer agrees

    1

    Best Answer
    chosen by asker

    Answered . An attorney can help you find ways to introduce this evidence at trial. A creative lawyer will look at WHY was the family violence case dismissed- could the prosecutor not reach you, did you drop the charges for fear of further retaliation, etc? The answers to these, and other questions, could provide a way to "open the door" to get the evidence before the trier of fact (the judge or the jury). Additional considerations may be actions you took in the immediate aftermath of the assault- did you leave? Get separated? File for divorce? Or was there a temporary reconciliation? And if so- was there further violence that occurred? An experienced family law attorney can help you determine the best course of action considering this and other evidentiary matters in your case. Wishing you the best of luck in the future and good luck with your case.

  3. Michael Glynn Busby Jr.

    Pro

    Contributor Level 19

    3

    Lawyers agree

    Answered . You should hire a lawyer to help you present this to the court or the jury, you seem to be doing ok, but best to hire someone to assist you.

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