A typical question that I hear at most initial consultations (and I suspect most other divorce attorneys hear the same question) , is "how do I get my spouse out of the house?" The typical answer is that unless there is a new act of domestic violence, you cannot usually have a spouse removed from the house while the case is pending.
While in a perfect world, attorneys are not telling their client’s to get restraining orders that are not legitimate, that seems naive. Similarly, I am sure that badly motivated litigants, when hearing that a restraining order is necessary to get rid of their spouse, will do whatever it takes to get that restraining order, including provoking altercations and/or fabricating an incident. I have, unfortunately seen or heard of this many times. In fact, I often advise people to have a recorder with them at all times to protect themselves from a set-up. In a recent case, the wife told the husband that she would no anything she could to get him out of the house. I have unfortunately heard this a lot. Aside from the obvious reason to get rid of a spouse, the other reason is that with the entry of a final restraining order comes a rebuttable presumption that the victim should get custody of the children. Also, there is the practical advantage of gaining possession of the home and temporary custody of the children by virtue of a restraining order.
Don’t get me wrong. Domestic violence, real domestic violence is a blight on our society and is in no way acceptable. That is not what I am talking about. I am talking about, at best, what the Appellate Division has called "domestic contretemps" (i.e. your garden variety argument) and at worst the set-up noted above.
Because domestic violence is so serious, it is an affront to the system and real victims when it is abused. A few quotes from Appellate cases really get to this point.
In the Peranio case, Judge, now Justice Long criticized application of the domestic violence statute to a minor disagreement when she stated:
Although it can safely be observed that defendant’s conduct was no model, application of the domestic violence law to it diminishes the suffering of true victims of domestic violence and misused the legislative vehicle which was developed to protect them. It also had a secondary negative effect: the potential for unfair advantage to a matrimonial litigant.
Justice Long also quoted from the Appellate Division opinion in Murray, as follows:
We are concerned, too, with the serious policy implications of permitting allegations of this nature to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin.
Justice Long then ultimately concluded:
While we are sympathetic with plaintiff’s desire to shield her children from the bickering which took place between her and defendant during his visits (this was plainly one of the factors which fueled the filing of the domestic violence complaint), the fact of the matter is that the dissolution of a marriage is rarely a happy event. All parties suffer and even the most rational are hard pressed to avoid any emotional encounters. Our hope, like plaintiff’s, is that all children of divorce can be spared arguments and recriminations. But this needs to come from the good intentions of their parents and not from the misapplication of the domestic violence law, which law was intended to address matters of consequence, not ordinary domestic contretemps such as this.
At the end of the day, the domestic violence statute is an important and necessary tool to protect victims of domestic violence. That said, it should be real victims and not maliciously motivated litigants seeking to get a leg up in their divorce or custody proceedings.