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.