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.

7 Responses to The Abuse and Misuse of the Domestic Violence Statute

It’s a breath of fresh air to see a law firm discussing this publicly. Unfortunately we see this happening all the time in high conflict divorce situations, typically against men, and usually when they believe their ex would “never do that” and are wholly unprepared. The divorce and custody battles often gets worse from there, hurting the children the most. We need more Judges/Justices that are willing to take a stand rather then erring on the side of caution and potentially destroying the lives of so many.

False allegations, of any nature need to be punished.

The two theorys as to why this should not happen have failed the test of time:

1) “It will deter other victims from coming forward” – while this MAY be theoretically true, practical application proves otherwise. Even if guidelines were in place to punish false accusers – ADAs and Jurists would be loathe to punish a person who MAY have lied. As it stands now, a false allegation can be cast with impunity.

In divorce proceedings, in our adversarial “winner take all” system people who are divorcing are angry, the situation is volatile, and when children are involved people go to extremes.

2) Punishing false allegations will clog up the system – often it’s he said/ she said.

The clogging of the system is a self created problem BY the courts. Had, long ago, jurists and DAs started punishing false allegation with proper custodial sentences the deterrent value of those punishments would have not made the problem in the first place.

Many types of cases are he said/she said. Are we to just ignore those cases for the sake of expediency? And to “err on the side of caution” SHOULD mean to presume innocence, not guilt.

Lastly, any person who would use a false allegation of DV, or other legal vehicle to take away the freedom, possessions, employment, clean record, or to financially devestate another person is NOT someone who should be raising a child.

Their moral and ethical compass is so wrongly pointed that to place a child, whose development they would guide, would surely be no different than placing the child with known criminals – which is what this person is, whether they are punished for it or not.

I hope I have added to the discussion.

L. Steven Beene II

The abuse of Domestic violence ‘fix it’ laws departs from legal practice into legal and professional tyranny upon the hapless with some unknown ideology. It inflicts on it’s target far more harm than the generalized legal maxim allows, ‘the law shall commit no harm’. In sum certain the greatest harm done in the name of our more newer laws have no standing under common law, but have great standing in profiteering for the gullible, abject lifelong misery for it’s marks.

The Uk has been a benchmark for what occurs here in the US, albiet a little tardy by some 4 years. The Uk is now experiencing it’s worst deluge of teen deliquency and behavior, that the government cannot fix. I do hope here in the US we are a little quicker to head this guaranteed mess off at the pass. I suggest we round up the judicial system especially all those associated with the P&F courts. As has been the case for it’s victims. Summarily to evict them from their houses, employment and any prosperity, then divide up their property and disburse their assets among the problem it has created.

I am glad that there is open discussion on this. I have been privy to several women in my office discuss pending/past divorces they were going through and “coaching” each other on what to say, how to substantiate DV, and how to play the Oh so scared victim. It may not be so much lawyers that initiate the DV allegation, more so other women whom know the system and how to manipulate it to their advantage.

I am a womon in her 50s with four children, married to my DR husband for 19 years. My husband has been abusive physically and emotionally to my self and children over the years. We never reported to any legal authority due to the fact he was the sole bread winner and we are financally dependant on him. It could ruin his career. There were not any serious physical injuries. We worked the problems out within the family. A few years ago we were in family consuling, when we got home I felt things were not ever going to improve so I threaghtened to divorce him. Let me tell you how I personally experienced misuse of demestic volence laws. I would never think this could happen to me . When I went to pick up my son from school,I got a call from the police saying they had a warrant for my arrest something about a b50. I had no idea what it was about. the police came to my home, took me to jail. then showed me papers my husband had filed on me. I never would have believed that i would be put in jail( two days) without bail, be put out of my house on injuctions, could not make contact with my minor child, was left without a car, money and had to stay at my grown sons house while I waited for court cases. I was under such incredable, stress It was the worst abuse I have ever suffered from my husband. Legal abuse. The b50 was dismissed because there was no assault. The DV complaint is in my perminment record. ( I had no record prior to that) He has said to me I slapped you once and ill slapp you again( meaning legally, he dosent physically hurt me now) I couldnt clear the record, it was best to leave it alone. It was so easy for him to do that to me just go down to the court fill out a complaint. He said the coart worker filled out the forms saying terrible untrue things. my husband let me come home again. He didnt want a divorce. But he really put me in my place. My husbands life was never in danger. I know that there are good resons for the DV laws ,to save someones life. But in this case I feel I am the real victum. It changed my life and not for the better. Thanks for listening. I am still not over what he did to me.

I am in the process of getting burned by the exact methods discussed above in the misuse of restraining orders. I was removed from my house of nearly 20 yrs. and will likely not return until the house is sold & I’m moving out. This has not only blown-up a wonderful 28+ year marriage along with a once proud family, but has ruined the lives of both of our children. The process of getting the restraining order to acheive my wifes goal was very easy; her tears won over the authorities and now she has our house, the dogs, and our kids along with the upper hand on all upcoming court judgements. It’s too bad that now our kids will only see painful frowns from their single parents when /if their parents ever see one another. Who really gains from this method of deceit anyway? I can only hope that my soon-to-be ex-wife’s victory is short lived and her reflections years from now will haunt her. Our kids don’t deserve this!

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