NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Also, a defendant may be tempted to contact the victim despite existing restraints via several different methods, whether it be directly, through a third person, and the like.  It is critical that the client understands the potential ramifications of making such contact, including, but not limited to, an arrest for criminal contempt prior to the final hearing.  While it may be necessary to be tough on the client (some obviously more than others) so he knows not to put himself at risk, it is also important for your client to sense that you as his lawyer understand both the legal and human elements to these sensitive matters.

That being the case, what kind of legal representation does a defendant need under these circumstances?

Detailed preparation is key.  Obtain all available documents and information from the police department via subpoena, be sure to subpoena your witnesses should they not be willing to appear voluntarily, and procure all available transcripts of proceedings related to the victim obtaining the TRO.  Phone records and text messages might also be critical, as well as any recordings, which should be carefully reviewed and utilized at a hearing.  For instance, the victim might have had to appear before a judge to obtain or amend a TRO.  Should that be the case, there is likely a record of testimony provided by the victim.  Comparing that record to the contents of the victim's TRO, potential statements provided in a police report, and the like, are critical to identifying inconsistencies and issues that may impact upon the victim's credibility.  At the end of the day, a final hearing is often a matter of he said/she said, causing a battle of credibility left to the trial judge to determine.

To that end, preparing your client to defend himself during a final hearing is also important, down to even what clothes he will wear to court, how he should sit, how he should talk, where he should look while testifying, etc.  As I said before, credibility is more than key.  With regard to having a police officer testify, be sure as to what the officer will testify and understand the Rules of Evidence with regard to authenticating a police report.  Tangentially, be sure to show courtesy and respect to the police department and officers, demonstrating an understanding that, while the officer is required to respond to the subpoena and appear in court, it is often an inconvenience that interferes with work and/or days off.  I find that an officer who hears that approach from me is more willing to cooperate even with a subpoena.

While this is not an exhaustive approach by any means, one last thing that might seem obvious - know the law.  It might seem as if the law is almost secondary in a domestic violence matter, but having a knowledge of the elements of the claims being alleged and the underlying case law not only helps me frame my examination, but my closing summation as well.  I typically review the "key" cases before a final hearing, just to refresh my recollection of the notable portions and holdings that the trial court will have to consider.

Whether a final hearing occurs or a matter is dissolved and restraints incorporated into a Consent Order, the most important thing that that I keep in mind is that, no matter what the situation, it is  the defendant's potential livelihood at stake that requires both a legal and human approach to representation.

Another result of these limited living options is that spouses are often hyper-vigilant to anything that goes on in the home.  One party (if not both) is often recording the other party without his or her knowledge and, in an effort to obtain what is believed to be usable "evidence" in the divorce proceedings, will incite arguments, welcome conflict, and the like.  Every argument appears heightened and can be abusive, often leading to the domestic violence complaint and temporary restraining order that the alleged victim hopes will become a final order to keep the other party out of the home for good.  Whether a court finds, however, that the argument that resulted in the restraining order was heightened merely because of the divorce or was an actual act of domestic violence requiring immediate protection is a steep hill for the victim to climb.  The result could be a dismissal of the domestic violence complaint, thereby allowing the accused spouse to actually move back into the marital residence!  In one matter in which we were involved, the temporary restraining order was dismissed after a final hearing and, within a few hours, the other spouse was at the front door of the home to get back in. 

Another option is to mutually agree to withdraw the domestic violence complaint and enter into an Order by consent, incorporating "civil" restraints that are enforceable by a motion in your divorce proceeding.  A common restraint as part of such orders is that the defendant spouse in the domestic violence complaint will agree to stay out of the home.  However, that spouse will often refuse to agree to stay out of the home, knowing the potential financial and custodial impacts his departure may cause for the overall outcome of the divorce proceeding.

At that point, can you leave the home?  Of course.  Can you leave with the children?  Usually not without a set parenting schedule upon your departure or some form of Order allowing you to do so.  While you might have always been the primary caretaker, that usually does not necessarily entitle you to simply vacate the home with the children and dictate parenting time as you see fit.  From the other parent's perspective, he might believe that you are simply looking to get a "leg up" in the litigation, just as he might have felt you were trying to do when you filed that domestic violence complaint during the divorce proceeding. 

To that end, many cases commence with one party having already left the home for a variety of reasons.  If the spouse who vacated the home was financially supporting the household, and the other spouse remains in the marital home with the children, he might find it financially difficult to support two households during the divorce proceedings stemming from a pendente lite (during the proceeding) support obligation.  It is all too common for that supporting spouse to all of a sudden show up at the door as the divorce starts, seeking to move back in.  Whether his lawyer advised him to move back home because of the financial burden that is soon to befall upon him, or that he is hurting his own custody claim if he is not in the same residence with the children 24-7 during the divorce, oftentimes he has the ability to move back in to the chagrin of the other spouse. 

Where does that leave us?  It is for that reason why getting along or simply managing to co-exist in the marital residence (whether for the sake of the children or otherwise) is critical to moving a divorce matter forward in what one hopes will be a reasonable manner.

One question that has created inconsistency amongst New Jersey courts in this area is whether a court can actually compel a husband to submit to the jurisdiction of the "Beth Din" - a rabbinical court of Judaism - to initiate proceedings to procure a Get to issue to his wife without violating the Establishment Clause of the Constitution's First Amendment. In the 1980s, New Jersey courts, first in the trial court opinion of Minkin v. Minkin, more than once held that compelling a husband to issue a Get was a proper enforcement of the Jewish marriage contract - the "Ketubah."  Those cases ruled under the premise that the Get acquisition is not a religious act and compelling a husband to submit to the Bet Din's jurisdiction would "neither advance nor inhibit religion . . . ."  One case held that a one-sided settlement agreement executed by the wife in order to obtain the Get was invalid as a product of duress.

Fifteen years after Minnkin, a New Jersey trial court in the case of Aflalo v. Aflalo, determined that the Establishment Clause did not permit the court to compel the husband to submit to the Beth Din to initiate Get proceedings.  The court rationalized that compelling such an act would go against the Jewish notion that a Get must be given willingly, without restraint, in order to - so to speak - set the wife "free."  The court added that such an act by the judiciary essentially puts the husband at risk of being held in contempt before the Beth Din even though he is consciously against the act in itself, and supersedes any decision the Beth Din may ultimately render on the issue.  Notably, under Jewish law, if the husband fails to comply with the Beth Din's dictates, it may issue a "seruv" - an order of contempt to a husband who refuses to comply with its order to give his wife a Get.  When ordered, all Orthodox Jews must shun the non-compliant husband. 

Interestingly, the Beth Din of America - a central rabbinical body - addressed the improper withholding of Gets by creating a prenuptial agreement containing a support obligation formalizing the husband's obligation under Jewish law to financially support the wife.  In so doing, the husband is supposed to be incentivized to issue to the wife a Get should the marriage fail.  It creates the sort of civil contractual right upon which it is intended for a court to act and enforce.  However, no New Jersey court has actually addressed the enforceability of such an agreement.

Also, no Appellate Division decision has really rule on the Get issue, as one decision within the past few years essentially passed on the issue because the record before the Court was insufficient as to the effect of the particular ketubah at issue and the mandates of Jewish law.  The Appellate Division in Abdelhak also did not address the issue, as the real issue there was whether the Court had subject matter jurisdiction to determine whether a husband had been wronged - based on claims including, but not limited to, claims of defamation and intentional infliction of emotional distress - by various parties in relation to his refusal to grant his wife a Get because his wife refused to raise their children as Orthodox Jews. 

The Appellate Division ultimately dismissed all of the husband's claims, finding that it lacked subject matter jurisdiction to rule upon the husband's claims because they could not be resolved by solely using so-called "neutral" non-religious based doctrine/principles.  Simply put, a jury would have had to consider various issues within the context of specific Jewish laws in order to decide upon the husband's civil court claims.  As a result, the Appellate Division concluded that it could not hear the case due to a lack of jurisdiction as to the subject matter before it.

The intertwining of civil and Jewish legal principles and doctrine provides for interesting discussion, especially in light of Abdelhak.  The rules involved with a wife procuring a Get are far from simple, as demonstrated by New Jersey courts differing opinions on the issue.