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Legal Rights Of Domestic Violence Victims

There are many reasons for people in NJ to seek a divorce, but one of the most common is domestic abuse which can include more than just physical, emotional and sexual abuse. When a person is filing for divorce from their spouse who is alleging abuse, there is other aspects that need to come into consideration including the safety of both spouses. It is possible that the abused spouse will take out a temporary restraining order (TRO) against the spouse who they claim has been abusing them. A TRO is meant to protect the spouse who has been abused from the abuser by taking the abuser out of the home. The hope is that it will provide motivation with the threat of criminal prosecution to the abuser to adhere to the terms of the TRO.

What Is Domestic Violence In New Jersey?

parents fighting

Domestic violence is sometimes defined as the use of controlling and coercive behaviors to influence, hinder, and form the feelings of a spouse. The way in which this is achieved is through emotional abuse, physical abuse, economic abuse, sexual abuse, isolation, threatening, and abusing children.

While a person might not deem him or herself as “abusive” when all they do is yell, the truth is that this too constitutes abuse if it is severe enough. The continued verbal attacks against the other spouse can include threatening and intimidation to make the victim believe that there is the potential for the abuse to become physical and in many cases, it can and does. Sexual abuse such as spousal rape, deviant sexual behaviors and exploitation also fall into the category of abuse. Not providing necessary economic assistance for the spouse to be able to function without the abuser providing financial support is considered to be abusive behavior. Isolation from other people apart from the abuser or using children in the relationship as a weapon to maintain control are other forms of abuse.

Domestic violence can include the following: homicide, assault, threats of a terroristic nature, kidnapping, criminal restraint, sexual assaults, stalking, harassment, criminal trespass, and false imprisonment. All of these instances and examples are to be taken seriously, and to be treated as such. It is a prevailing belief that women are the primary victims of domestic abuse, but men can also abused by their wives.

What Is A Temporary Restraining Order In NJ?


It is important for a victim to understand that the behavior of domestic violence is not acceptable and there are steps that can be taken to deal with the situation. When domestic violence occurs, it is important to retain any evidence in the form of phone messages, letters, and emails. Take photographs of any physical injuries that might have occurred as a result of the domestic violence. Retain copies of medical reports that detail your injuries. If you believe that you are in danger of the domestic violence happening again or becoming worse, contact law enforcement and request that an emergency temporary restraining order (TRO) be issued against your spouse to keep him or her away from you. Speaking to an attorney regarding the domestic abuse and a possible divorce is also a wise decision.

The purpose and application of the TRO is to remove the abuser from the situation and keep him or her from the home, place of work, school where the children attend or any other location where the other spouse might be on a temporary basis. The TRO is also designed to prevent the abuser from contacting the spouse by any means whether it is by phone, text message, email, or any other method. The abuser will be told to keep a certain distance away from the spouse at all times as well as anyone who might be relevant to the marriage like parents or siblings. If there are children in the relationship, the schedule for visitation must be detailed and planned for specific locations for the children to be picked up and dropped off. There will also be a requirement that the abuser provide financial support until the matter is settled whether it is by divorce or the removal of the restraining order.

Eventually, a permanent restraining order may be issued to keep the abuser away from the abused completely. This will last for as long as the abused spouse wants it to last and if the time comes that the spouse who was abused would like to alter or remove the terms of the permanent restraining order, the courts are very meticulous in making sure that it is done for a viable reason and not because the abused spouse has been threatened or is afraid.

For an abused spouse to leave the abuser, there are places such as a battered women's shelter which provide a safe haven. The safety of the spouse and the children is imperative in a domestic abuse case and the law is there to help the abused person to get the help he or she needs to prevent it from happening again or growing worse.

How To Get A Temporary Restraining Order

judge with gavel

If an abused person would like to get a TRO, he or she must go to the police station or courthouse and explain to the law enforcement officer or clerk that there is abuse going on at the home and a TRO is desired. Paperwork will be completed and a judge will discuss the matter with the abused person regarding the history of abuse. Once the circumstances surrounding the matter have been heard by the judge, a determination will be made whether a TRO will be issued. When the TRO is issued, the abuser will be removed from the home and ordered to stay away from the spouse with the threat of criminal prosecution.

An estimated ten days after the issuing of the TRO, there will be a hearing for a final restraining order. Both the abuser and the spouse are required to attend the hearing to give testimony under oath. This can be hard for an abused spouse and it is wise to have an attorney present for assistance during this hearing.

Domestic Abuse In A Divorce Case

When there is a divorce in progress and one of the reasons for the divorce is abuse, many spouses who claim to be abused take the step of filing a temporary restraining order or a final restraining order against the husband or wife. This decision can have a significant influence on the divorce proceeding as the terms of a restraining order prevent any contact between the parties. What that means is that there will not be any settlement discussions, if there are children involved there will be no communication regarding them, and it could harm the person against whom the order was taken if they have the type of job—a police officer for example—where the record could have an adverse effect.

If there is a restraining order issued, the court must determine the visitation rights of the individual against whom the restraint was filed if there are children in the relationship. The residence belonging to the alleged victim will not be accessible for the spouse under the restraining order. The alleged abuser will have access to his or her personal items such as a motor vehicle, documents such as insurance papers, and other pieces of property he or she might require while the restraints are in effect. Law enforcement may be necessary to accompany the alleged abuser when he or she goes to pick up children or any item that might be in the residence of the victim.

There are also instances when a divorce grows so contentious that one party makes allegations against another party that are not true. This will hurt the person accused of abuse in the short term, but in the long term—if these allegations are proven to be false—it can have severe aftereffects for the person who filed the false charges.

How Can A Restraining Order Influence A Divorce In New Jersey?

broken family

The divorce outcome can be influenced by a restraining order taken out due to domestic violence. During the divorce proceedings the court will decide upon such issues as restraining the alleged abuser from the spouse in the future. The living arrangements will have to be settled so the contact between the spouses is as limited as possible. If the couple owned a home together, the decision as to who receives the property will be influenced by a restraining order.

If there are children in the relationship, the custody and visitation rights will have to be decided upon so that the allegedly abused spouse will be safe. There could be financial ramifications to the alleged abuser and he or she might have to pay the abused spouse for the abuse. The alleged abuser might be required to attend counseling.

Even with all the safeguards designed to protect the spouse who claims abuse and to possibly protect the alleged abuser from doing something that could escalate the situation and lead to substantial jail time and worse, it is hard to account for everything that could happen when there is domestic violence as part of a divorce.

How Can A Restraining Order Be Removed?

The victim in a restraining order is allowed to modify the order or dissolve it if that is what he or she decides to do. It is required that the change to the order be deemed voluntary with no evidence of duress or coercion on the part of the other spouse. The victim will also be made aware of the rights and consequences surrounding the dismissal. The dissolution of the restraining order must be done through Family Court. The Family Court judge must have the information regarding the original application for a restraining order. After reviewing it, a decision will be made as to whether the restraining order will be dissolved. Depending on the circumstances, the restraining order might not be dissolved if the court chooses not to do so.

Contact A Qualified NJ Divorce Lawyer

If you wish to obtain a divorce and either have or want to obtain a restraining order against your spouse in Monmouth County, Ocean County or any other area in New Jersey, the attorneys at the Law Firm of Villani & DeLuca, P.C. in Point Pleasant Beach, New Jersey can assist you.

There are many valid reasons for a person to obtain a restraining order against a spouse and there also may be valid reasons to dissolve the restraining order. Once the divorce is settled, it is possible that the spouse who filed for the restraining order would like to have it removed so the other spouse is able to see children or forge a non-marital relationship with the former spouse.

Other Resources For Victims Of Domestic Violence

Final Restraining Order (FRO) in Jackson, New Jersey

New Jersey Divorce Process

Handling Child Abduction By A Spouse 

What Is Collaborative Divorce In New Jersey?

Whether you are from Red Bank, Long Branch, Freehold, Howell Townships or any other town in New Jersey, Villani & DeLuca, P.C. can help you with your divorce and allegations of domestic abuse. Call 732-751-4991 today to discuss your case.

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.