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Berkeley Family Law Attorney- Appellate Court Bans Private Negotiations for Restraining Orders

Posted by Unknown | Jan 22, 2020 | 0 Comments

The New Jersey courts encourage spouses to work out their differences through private methods whenever possible.  These methods include mediation, arbitration and collaborative divorce, as well as the Early Settlement Program which is offered by the superior courts.  As a general rule, judges do not interfere with a couple's right to negotiate an agreement, since doing so would discourage them from entering into private negotiations.  Judges do, however, come across proposed settlements with questionable or unconscionable terms.  In such cases, the court may step in and reject the agreement, regardless of the wishes of both parties.

A recent case in which the court rejected a private divorce agreement is JS -- v - DS, which involved a husband who had been given the marital home in exchange for the wife receiving a final restraining order (FRO) against him.  A final restraining order means that he would be forbidden from having any contact with his wife on a permanent basis, including non-physical forms of contact such as phone calls, email, etc.  FROs and all other restraining orders are normally issued by the family courts after a hearing to determine whether or not an incident of abuse had actually occurred. In this case, there was never a court filing or hearing to determine the existence of domestic violence, or the wife's need for permanent protection from her husband.

Although the trial court allowed this arrangement, the appellate court reversed the decision, based on the serious nature of an FRO for both the plaintiff and the defendant.  While the issuance of a restraining order is not a criminal proceeding, it is still issued upon the adjudication by the family courts.  As an official court ruling, it can be used to as the basis for a criminal complaint, which may result in a jail sentence and a criminal record.  In the appellate court's view, using an FRO as as leverage in a divorce settlement or other family disputes trivializes the legal implications of restraining orders and the state's domestic violence laws.

Victims should be aware that the state's domestic violence laws encompass a wide array of behaviors such as stalking, lewdness and property damage.  Furthermore, the laws allow victims to obtain temporary protection through EROs (emergency restraining orders) and TROs (temporary restraining orders) until the date of the hearing.  Victims can also choose to dismiss a restraining order -- even a final one -- after a hearing to determine whether they are aware of the full ramifications of dismissing the order.  As you can see, victims do have flexibility in the level of protection they choose, as well as the ability to forego that protection when it no longer becomes necessary.  The appellate court's main concern is to preserve the sanctity of those protections through mandated court interventions, especially in the context of pending family disputes such as a divorce.  For more information on New Jersey's domestic violence laws, please speak with the family law attorneys of Villani & DeLuca, P.C.  

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Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 751-4991 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.