National Indian Country Clearinghouse on Sexual Assault

Child CustodyAmerican Indian/Alaska Native victims of sexual violence may need to access divorce or dissolution of marriage proceedings in tribal or state courts.  This need may arise when a victim has survived marital or spousal rape or in cases where the stressors of surviving sexual violence have been a contributing factor to the ending of a marriage.


Divorce or dissolution proceedings are important for American Indian/Alaska Native victims of sexual violence for a number of reasons.  Without a formal divorce order or dissolution decree, victims may face numerous challenges, even if they have physically separated from the spouse for a period of years:

 

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  • Without a divorce, victims are financially responsible for any future debts incurred by their spouse.  This means that a victim can physically separate from her husband for many years, but still remain liable for his future credit card debt, student loans, judgments against him for torts, medical bills, and other debts.
   
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  • Absent a divorce decree, both biological parents have equal rights to legal and physical custody of the children in common.  This means that the husband is not legally prevented from taking the children off of tribal or state lands, moving to another jurisdiction, enrolling in a different school, changing the child’s religion, and consenting to medical procedures without the mother’s permission.
   
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  • Victims may not be able to dispose of or acquire property (e.g. a mortgage, a motor vehicle, a piece of farm land, or a boat) without a husband’s signature.
 

 

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  • Up to half of any equity that the victim builds up in a home, business, farm, or vehicle may later be claimed by the other spouse in community property jurisdictions.
   
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  • Without a divorce decree, the other spouse may have access to the victim’s retirement accounts and pensions.
   
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  • A victim’s non-divorced spouse can ruin a victim’s credit score and prevent her from accessing financing for a vehicle, credit card, mortgage, or business loan.
   

 

When initiating divorce proceedings, it is important to file in the correct jurisdiction. Couples domiciled or living within the same tribal jurisdiction must file for divorce in tribal court. If children are involved, in general, the divorce should be filed in the jurisdiction where the children have been domiciled for the past six months.  For more information on divorce for American Indian/Alaska Native victims with children you may visit the Legal Resource Center on Violence Against Women at:www.lrcvaw.org

 

National Indian Country Clearinghouse on Sexual Assault, a project by the Southwest Center for Law and Policy © 2017

This project was supported by  Grant No. 2011-TA-AX-K045 awarded by the Office on Violence Against Women. Points of view in this document are those of the author and do not necessary represent the official position of the U.S. Department of Justice. All rights reserved. | Privacy policy   Login