Domestic violence is horrific epidemic. Most statistics say that 1 in 4 women will experience domestic violence in their lifetimes. Statistics on men aren’t as readily available, but a steadily growing body of research has forced the public to acknowledge that men are victims of domestic violence, too, and more often than we might imagine. And domestic violence seems to be on the rise in the U.S. Unfortunately – because of fear of further violence, ignorance of the laws about domestic violence, or hope that the problem will go away – most victims never report the domestic violence that they suffer.
A domestic violence allegation – true or false – could have a major impact on the course and outcome of a divorce – though not always in the way you might expect. If your spouse has accused you of domestic violence during a divorce action, you need to know exactly what you’re up against, what the consequences will be for violating a restraining order, and how to defend yourself in court.
Understanding domestic violence laws in New Jersey
The Prevention of Domestic Violence Act defines domestic violence in the State of New Jersey. Many people harbor the misconception that domestic violence has to be a physical act – that domestic violence has to leave a visible mark. This isn’t the case. Threats and other forms of verbal abuse and intimidation also qualify as domestic violence.
What “counts” as domestic violence?
A victim may allege domestic violence citing any of the following actions:
· Terroristic Threats
· Criminal Restraint
· Sexual Assault
· Criminal Sexual Contact
· False Imprisonment
· Criminal Mischief
· Criminal Trespass
The most common domestic violence allegation is harassment. Harassment in New Jersey is a “disorderly persons offense” (as opposed to a misdemeanor or felony). One is guilty of harassment if he or she:
- Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.
- Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so.
- Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Stalking is another common allegation. In New Jersey, a person is guilty of stalking if he or she repeatedly follows another person and engages in a course of conduct or makes a credible threat with the intent of annoying or placing that person in a reasonable fear of death or bodily injury.
Who can file a domestic violence complaint?
When the New Jersey Legislature enacted the Prevention of Domestic Violence Act, its principal focus was serious abuse between spouses.
However, the definition of a “victim” in the New Jersey Prevention of Domestic Violence Act extends its protection beyond just spousal abuse to include:
- A person who is 18 years of age or older or an emancipated minor, and has been subjected to domestic violence by a former spouse or any other person who is a present or former household member.
- A person of any age who has been subjected to domestic violence by a person with whom the victim has had a child in common, or with whom the victim has had a dating relationship.
Understanding Temporary Restraining Orders (TROs)
Victims of domestic violence can file with the court for a Temporary Restraining Order (TRO). Not all TROs contain the same provisions. Different TROs may:
- Prohibit the defendant from returning to the scene of the domestic violence.
- Prohibit the defendant from locations where the victim (and other persons named by the victim) are employed or reside.
- Prohibit the defendant from any oral, written, personal or other form of contact with victim and other persons named by the victim.
- Prohibit the defendant from making or causing anyone else to make harassing communications to the victim and other persons named by the victim.
- Prohibit the defendant from stalking, following or threatening to harm, to stalk or to follow the victim and other persons named by the victim.
- Forbid the defendant from possessing any firearms or other weapons, including an order to search and seize any weapons at any location where the judge has reasonable cause to believe the weapon is located.
- Direct the defendant to pay the victim money that is needed on an emergency basis, or any other relief deemed necessary by the Judge.
TROs will usually be in effect until the judge can hold a hearing – usually at least a week.
After this, the court may deliver a Final Restraining Order (FRO), making the terms of the TRO permanent, or setting new, more comprehensive terms.
After some time has passed, abusers have undergone therapy or otherwise learned to control their behaviors, and the emotions of a divorce or violent domestic situation have cooled, many former abusers will ask a court to lift an FRO. Courts deny these requests more often than they grant them, but lifting an FRO is not impossible. The courts will consider the following factors when one party asks for the lifting of an FRO:
- Whether the victim consented to lift the restraining order.
- Whether the victim fears the defendant.
- The nature of the relationship between the parties today.
- The number of times that the defendant has been convicted of contempt for violating the order.
- Whether the defendant has a continuing involvement with drug or alcohol abuse.
- Whether the defendant has been involved in other violent acts with other persons.
- Whether the defendant has engaged in counseling.
- The age and health of the defendant.
- Whether the victim is acting in good faith when opposing the defendant’s request.
- Whether another jurisdiction has entered a restraining order protecting the victim from the defendant.
- Any other factors the judge deems relevant.
Violation of a TRO or FRO could result in fines, the loss of your driver’s or other professional license, and even jail time.
What to do if you’re guilty of domestic violence
Victims aren’t the only ones who need to “heal” from domestic violence. If you are an abuser or former abuser – whether you have committed one act of domestic violence or many – you must rehabilitate yourself, too. You must learn to subdue your violent impulses, achieve greater emotional control, and confront the underlying issues that moved you to violence, both for your long-term well-being and to minimize the damage to your divorce case. If you’re guilty of domestic violence and going through a divorce, consider the following steps.
- Separate yourself.
If you’ve victimized another person, you need to separate yourself and stay away – whether or not you’ve yet received a restraining order. This is primarily for the other person’s good: the divorce process is stressful enough without adding bodily fear into the mix. If the charge of domestic violence is honest, then you need to admit that you’ve done something wrong, and understand that the other person deserves to feel safe, and deserves space to recover.
Separation helps you, too, though. While it’s certainly a setback to be kicked out of your home, this is the reality of the situation. Staying away ensures that you don’t give your divorcing spouse any more “ammunition” to use at a trial, and it allows tempers, fears, and resentments to settle down.
Also, as discussed above, violating a TRO or FRO can land you in jail; at the very least demonstrating disregard is not an indicator of good parenting potential, and will affect a court’s custody decision if there are children involved.
- Do not “vent” about the divorce or the accusations against you – especially on social media.
Really, you shouldn’t be talking about these charges with anyone but your most trusted friends. If you’ve vented to a friend and let slip some careless language with even a hint of violence, your spouse’s attorneys could bring that person in to depose and testify to your violent “intentions.”
Social media is even more likely to get you in trouble. Maintain a circumspect silence through the divorce.
“Venting” is all too often a misnomer. Complaining about your current situation to friends, coworkers, or the World Wide Web,doesn’t “let out” negative emotions as much as it reinforces negative patterns of thinking. This can be dangerous, as it could lead you back into violent acts, or into violations of your TRO or FRO. If you’re going to “vent” to anyone, it should be to a qualified counselor or a friend you can trust to tell you the truth and steer you away from negative or potentially dangerous thought patterns.
- Consider seeking counseling or other psychological treatment.
Remember what we said at the top of this section: you need to heal, too. It’s better to take an active approach to this healing process, and seek qualified help to ensure that you don’t harm anyone else, don’t harm yourself, and can live happily, peacefully, and productively without worry that an argument or incident will lead to another encounter with the police.
In the short-term, seeking counseling is a step that shows the judge you’re seriously repentant and intend to fix your behavior. This may improve the terms of an FRO and it may improve the chances that you’ll get a favorable child custody decision, if you have children.
How to deal with false charges of domestic violence
While we can’t trivialize real domestic violence, neither can we let our desire to change the culture blind us to the fact that many claims of domestic violence are false or exaggerated, especially when something material is “at stake” – as in the case of divorce. Many parties going through divorce think that if they can claim the privileged role of “victim” – by whatever means – they will achieve more favorable decisions on child custody and support, alimony, and the division of assets.
This is, to a significant degree, wrong. As we’ve discussed, a court will consider a history of domestic violence when making a decision about child custody, reasoning that a parent with a history of violent actions toward the children or the other parent will be less likely to provide a safe and nurturing home environment for the children. However, the current New Jersey laws highly value the role of both parents in child-rearing, holding that maintaining a relationship with both parents after a divorce will be best for a child. Even in domestic violence cases, then, courts will usually allow the alleged abuser to have parenting time, the amount depending on the extent of the allegations and the evidence in support of them, and supervised if need be. Furthermore, domestic violence will not affect a court’s decision about alimony or the division of assets.
However, a false allegation of domestic violence could impinge on your right to a relationship with your children. It could put you in an uncomfortable and embarrassing situation if people you know get wind of the slander (and you can expect a spouse who invents a claim of domestic abuse to spread it around). And it could end in an FRO that puts unreasonable and unjust restrictions on your right to free movement – restrictions that, if you violate them even accidentally, could result in steep penalties including the loss of your license and even jail.
Far too many people facing domestic violence charges choose to represent themselves. This may be because they feel the allegations are absurd, and will be easy to dismiss by simply testifying against them.
If you look back to the definitions of domestic violence in New Jersey, however, you will find that the standards for qualification can be shockingly low. In most States today, an emotional, late night text message could qualify as “domestic violence” if the accused fails to put up an adequate defense. This actually happened in a recent case, and luckily for the defendant, he retained a domestic violence lawyer and had his decision overturned in the Appellate Court – which rarely happens in domestic violence cases.
If your spouse, partner, or former partner has falsely accused you of domestic violence, you will need an expert attorney to dismantle the prosecution’s case. You may use the testimony of friends and family, correspondence between you and your spouse, psychological evaluations, and false complaints to Child Protective Services or other agencies who might have responded to a call and found nothing amiss. Your attorney will also be able to direct the judge’s attention to dubious claims and the absence of evidence, and respond to slanderous accusations. Certain precedents have also established the primacy of objective fear over subjective fear. In other words, a judge will consider what might cause fear to “a reasonable person” rather than the alleged victim’s declaration of fear alone – but again, you will need a skilled attorney to draw this distinction.
Dedicated, client-focused divorce and domestic abuse counsel
If your spouse or another family member has accused you of domestic violence, you cannot afford to proceed alone. Your freedom, your finances, your family, and your quality of life are all at stake. Whether the allegations are true, exaggerated, or entirely false, you need to hire a dedicated family law attorney with experience handling domestic violence cases.
Call today or fill out our contact form to schedule a free, confidential consultation with our team at the Salvaggio Law Group, LLC Morristown, NJ offices. You can see for yourself what separates us from other firms. In the meantime, use our resources to learn more about divorce and family law. Explore our family law blog, or start with The Complete Guidebook to Divorce in New Jersey.