Using The Prevention Of Domestic Violence Act As A Sword In A Divorce Matter

It is well established in New Jersey Family Law that the Prevention of Domestic Violence Act (“the Act”) is to be broadly applied to ensure protection for true victims of domestic violence. What happens, however, when an alleged victim procures a Temporary and perhaps Final Restraining Order simply to procure an advantage in a separate ongoing Family Part matter, such as a divorce or custody dispute. Tragically, it happens frequently enough in our practice that there are several notable cases emphasizing how the Act is not to be used as a “sword” in a separately pending matter. Of course, this often does not slow the pace with which this potential misuse of the Act occurs. A tangential impact, unfortunately, is that it also dilutes the claims of actual victims who require the Act’s protection from an abusive defendant.

To that end, procuring a TRO is often as simple as going to the police department or courthouse and alleging that the other party did something to you that rises to the level of domestic violence. There need not be any proof of any kind. The alleged victim’s word is commonly enough. As an alleged defendant, there often is little that can be done or, more realistically, little that will likely prove effective to stop it. While you can appeal the TRO while it is pending, the chances of a trial judge dismissing a restraining order before a final hearing occurs are very low if not virtually non-existent.

As TROs are liberally granted by Family Part judges as a matter of caution and infrequently denied, the result to the alleged defendant could prove devastating even on a temporary basis. For instance, the defendant can be displaced from a home. Prevented from seeing or talking to children. Forced to suddenly pay support. Punished for what could be a complete fabrication of allegations. Incurs thousands upon thousands of dollars in legal fees to prepare for a final hearing with an uncertain result and long-lasting potential consequences. Notably, while there exist cases indicating that a wrongfully accused defendant could procure counsel fees under New Jersey’s frivolous litigation act if the matter is deemed to have been frivolously brought by the alleged victim, the chances of procuring such relief are limited because of the potential chilling effect on victims as a whole in coming forward with claims of domestic violence.

Worse, in today’s virtual Court environment, the already backlogged court calendar could prevent a final hearing from occurring for weeks, if not months despite the Act requiring that a final hearing occur within ten (10) days of the TRO’s issuance. For instance, I had an ongoing domestic violence matter last year that – after three days of trial – went unscheduled for a fourth day for several weeks as the pandemic commenced. Even before the pandemic, overburdened trial court judges were pushing out actual trials for weeks, if not well more than a month before the trial occurred based on calendar overload. It often leaves alleged defendants in the position of having no choice but to throw up their hands and just wait no matter what damage is being done.

While domestic violence matters cannot be “resolved,” an alleged victim can agree to dismiss his/her temporary restraining order. Oftentimes the willingness to do so is provided in exchange for a written agreement entered in a separately pending divorce or custody/support matter. While an order entered in a divorce or custody/support matter does not have the protections of an actual restraining order for the alleged victim, it may provide for various other forms of relief as the terms are the subject of negotiation between the parties and, if represented, their attorneys. With a TRO hanging over an alleged defendant’s head for potentially weeks on end without resolution, it may feel as if there is no option but to either proceed through a very costly final hearing whenever it may occur and with whatever result may occur, or surrender to an alleged victim’s demands, which can range from financial terms, custody/parenting time terms, an agreement to stay out of the house, counsel fees and more.

As none of these options are ideal, it is imperative that you understand your rights as a defendant under the Act and how the situation could impact upon your separately pending matter, if not your life both in the short and long-term.

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