We have written before on the topics of the use and misuse of the Prevention of Domestic Violence Act, and representing a litigant in a domestic violence matter. Within the past few weeks, a few experiences have brought this topic back to the forefront, and I thought that now was a good time to address the issues, especially in the context of "resolving" such matters. As a family law attorneys, we frequently encounter domestic violence as a component of our practice. Whether it happens in the context of an ongoing divorce, entirely independent of a marital relationship, or something different altogether, each case is certainly different from the next, and each case resides on its own motivations, so to speak.
What I mean by that is, the Prevention of Domestic Violence Act is a vital piece of legislation designed to protect actual victims of domestic violence. Countless matters come across our desks involving legitimate, truthful victims in need of the law’s immediate protection from an abusive defendant. Some of the most difficult matters involve those where we represent real victims with tragic fears of harm, including those who are immersed in the cycle of violence looking for a way out. Considering the risk to such a victim if a final restraining order is not granted, the import of the litigation is vital.
On the other hand, many cases – typically in the context of an ongoing divorce matter – involve a litigation-minded spouse simply looking to get the proverbial "leg up" over the other spouse in that separate, but related matter. Since the law is liberal in its protection of victims, it is often quite easy to procure a temporary restraining order, where the alleged victim can seemingly state whatever allegation he or she deems appropriate so long as it results in procuring a TRO. There are several well known cases addressing the judiciary’s obligation to look out for those litigants who are trying to use the law to his or her advantage, as such an occurrence is unfortunately all too common.
For example, where two parties are engaged in a custody dispute, New Jersey’s custody statute and law dictates that a final restraining order against one party results in a presumption that the victim will procure custody of the child. Similarly, two parties often live in the marital home during a divorce, either because neither party wants to leave, neither party can afford to leave, etc. A restraining order against one party will – at least temporarily – force that party to leave the home. From there, the so-called "victim" can use the temporary situation as leverage to keep the other spouse out of the marital home. It is because of such potential incidents that Eric Solotoff, in the "use and misuse" blog entry referenced above, suggests the use of a recording device to document the truth of what transpired.
What do I mean by leverage, especially since such a term seems completely incongruous with domestic violence? As a threshold matter, it is important to understand that a domestic violence matter cannot be settled or resolved, which is why I used quotations around "resolving" in the title to this entry. The law, however, does allow for an interesting device by which the victim may voluntarily withdraw his or her domestic violence and enter into a consent order with the other party that incorporates into the order what are commonly referred to as "civil restraints."
Essentially, all of the restraints and protections contained in the restraining order can be transferred to an order – mutually agreed upon by both parties – and entered by the trial judge in the divorce or custody/support matter, rather than the domestic violence judge. Defendants generally prefer this type of arrangement because it removes the risk associated with having a final restraining order entered against them, with all of the penalties/negatives associated with such entry. It is this preference, however, upon which alleged victims will often rely to procure additional relief under the threat of a final hearing against the significant other.
This form of order cannot be entered into the domestic violence matter, especially since a component of this type of arrangement involves the voluntarily withdrawal and dismissal of that matter. The differences between a final restraining order and the consent order include, but are not limited to, enforcement (a violation of the final restraining order can result in a criminal charge, while a violation of the consent order is addressed by a way of a motion for enforcement, with potential monetary relief), and the ability to include a wide range of terms in the consent order that would not otherwise be found in the restraining order. For instance, where an incident of domestic violence is alleged at or near the outset of a matter, the alleged victim will often attempt to procure all sorts of interim financial or custodial relief that would otherwise have to be sought by way of a motion for pendente lite relief.
Negotiating with a cloud of domestic violence allegations hanging overhead is not your typical negotiation, for sure. At any time, negotiations can break down and the matter will proceed to the final hearing on the domestic violence complaint that everyone was trying to avoid. Considering the issues at hand, one party reneging on the terms of an agreement can typically do so without consequence – simply put, it is highly unlikely that a trial court would ever enforce the terms of a settlement agreement against either party when allegations of domestic violence are involved.
Even worse, a strong set of allegations against a defendant really pushes that party’s back up against the wall – i.e., proceed to a final hearing with the risk of the final restraining order in view, or concede to all sorts of language in a consent order that the other party would likely never have procured without the existing allegations of domestic violence. At the end of the day, it is an emotionally charged and difficult high wire act where the wrong statement, step, or proposal can result in the breakdown of the negotiating process and commencement of the final restraining order hearing.
Thus, while a domestic violence matter can be "resolved," the settlement picture is often a lot more crowded, complicated, and even potentially strategic than one would think. Having experienced legal counsel to guide you through this process, whether you are the victim or the defendant in a domestic violence matter, is critical. The stakes are too high not to know and understand your rights in this area of family law.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.