New Jersey Divorce Lawyers Blog
My spouse and I separated and now he is threatening my safety. What are my options?
New Jersey’s Prevention of Domestic Violence Act was created to provide the victims of domestic violence in our state with comprehensive protections. In order to seek protection under this specific body of the law, a victim must have suffered at least one of the particular domestic violence acts set forth in in the statute (known as Prong 1 under a case known as Silver vs. Silver) AND, in addition, the court must conclude that the victim of the domestic violence has an ongoing need for protection from the perpetrator (Prong 2). If both prongs are not met, the court will not grant a final restraining order ( an “FRO”).
A victim may be a current or former spouse or household member, a co-parent or person who is expecting a child soon, or an individual who is in a dating relationship with an alleged perpetrator. It is important to note that a household member is not required to be a romantic partner, and New Jersey courts have, more recently, opted to construe what constitutes a “dating relationship” liberally.
Under the Act, domestic violence may include the following (there are other ones as well): assault, harassment (one of the most common grounds we see in TRO complaints), false imprisonment, stalking, kidnapping, terroristic threats, lewdness, criminal mischief, and more. The burden of proof for establishing that acts of domestic violence have occurred is based on “a preponderance of the evidence”. Although the Act borrows the definitions of the specific conduct constituting an act of domestic violence from New Jersey’s criminal statutes, this burden of proof necessary for a victim to prevail in obtaining a final restraining order is the lower threshold – “a preponderance of the evidence”; What is a preponderance, you may ask. It’s “more likely than not”. This, as compared with the burden to convict a person in a criminal matter; that standard is the more stringent standard of “beyond a reasonable doubt”. To picture this distinction, in football terminology, the analogy to be drawn is the following; To establish “a preponderance of the evidence”, think of it as convincing the judge that your version is the more accurate one, and if you were playing football, all you’d have to do is get it over the 50 yard line, into the other side’s part of the field. In contrast, to prove something “beyond a reasonable doubt”, picture having to move the ball to somewhere well past the other side’s ten yard line – almost in the end zone! In New Jersey, a victim of domestic violence may choose to file a request for a temporary restraining order (TRO) immediately following an incident of violent behavior.
In his or her restraining order request, a domestic violence victim is required to describe the purported acts of violence that merit its issue. Following a hearing, which is typically ex-parte (this is where only the victim advises the judge of the alleged acts suffered, without the defendant giving his or her version or rebuttal at that time; this is dependent upon the circumstances surrounding the timing and location of the acts occurred, how or when they were reported, whether or not the police were called to the scene and whether or not both parties were present when the police arrived to each give their version of what transpired) a temporary restraining order may be granted. It will remain in place until a final or permanent restraining order hearing can be conducted. If a temporary restraining order is issued, New Jersey law enforcement officials will serve the domestic violence perpetrator with a copy of the order and instruct the individual to comply with the provisions included in the order. This typically includes the requirement of the perpetrator to stay away from and have absolutely no contact with the victim. If the perpetrator does violate it, he or she is subject to immediate arrest and must face a separate, distinct offense for the violation of the TRO; and, this separate offense can persist even if the underlying TRO is ultimately dismissed!!! If you are served with a TRO, DON’T PLAY GAMES! STAY AWAY; DON’T ‘accidentally” contact the victim; don’t go to the victim’s house or work, or anywhere that the victim may likely frequent! The consequences for such a violation can include incarceration! CALL US! Immediately, once you may be served, if you are the defendant. And, if you are the victim, you should contact us to represent you at the final restraining order hearing. Just because you were granted the TRO does NOT mean you will be granted an FRO; And, we see quite frequently that the plaintiff/victim comes to court for the FRO hearing by him or herself, thinking they can handle it since they likely procured the TRO without the assistance of counsel. The standard to get the TRO as compared with the FRO are very different. More likely than not, a defendant/perpetrator served with a TRO will seek his or her own legal counsel to defend that person, as the consequences can be dire, and long lasting. You need an experienced family law/domestic violence attorney to navigate thru the nuances of this process- based on the law, and the procedure, both of which are highly specific.
Within 10 days of when the TRO was issued, a final restraining order hearing will normally be held. At that time, a New Jersey Superior Court Judge sitting in the Chancery Division, Family Part, will conduct a full hearing with the victim and the defendant each testifying, as well as any other fact witnesses that a party may wish to present) to determine whether an act of domestic violence, as complained of by the victim in his/her TRO occurred and if that Temporary Restraining order should be dismissed or converted into a Permanent (Final) restraining order (FRO). As part of the relief that may be contained in a restraining order, a victim may be granted temporary custody of any children, exclusive use of a residence, and certain immediate financial support. In addition to obtaining a restraining order, a domestic violence victim may also choose to pursue criminal charges against the perpetrator. Sometimes, the victim may not expressly wish to file a criminal complaint against the defendant but the Police can do so themselves.
Although the goal of the Prevention of Domestic Violence Act is to protect victims of violence, a perpetrator may face certain penalties and loss of freedoms under the law. For example, any guns that are in the possession of a domestic violence perpetrator may be seized at the time a restraining order is served. Additionally, an individual who was convicted of domestic violence may lose the right to purchase additional weapons in the future. A perpetrator may also be barred from returning to the scene of the domestic violence, prohibited from attempting to visit or otherwise make contact with a victim, and can be ordered to undergo a psychiatric evaluation or anger management program. If the defendant IS found to have committed and act of domestic violence and an FRO issues, the judge is also permitted to impose counsel fees and sanctions against the defendant.
If you were a victim of domestic violence in New Jersey, or have been served with a domestic violence complaint and TRO which alleges you committed an act of domestic violence, you are advised to discuss your legal options with the experienced family law attorneys at Goldstein Law Group. To speak with a knowledgeable New Jersey family law advocate about your situation, call Goldstein Law Group at 732-967-6777 or contact us through our website.
More Blog Posts:
Obtaining an Annulment in New Jersey, June 7, 2015, New Jersey Divorce Lawyers Blog
Will My Former Spouse Be Entitled to All or Part of My Pension Following a New Jersey Divorce?, June 6, 2015, New Jersey Divorce Lawyers Blog