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Divorce FAQ's

1. Why is it important to rigorously defend against a domestic violence charge?

Domestic violence is a very serious problem in New Jersey. Each year thousands and thousands of domestic violence cases are filed. While most of the domestic violence cases have merit, there are many instances where defendants are falsely accused. Persons who are falsely accused of domestic violence face many severe legal consequences. A court can evict a defendant from his or her home. A domestic violence complaint can lead to heavy fines, counsel fees, and money damages. Moreover, child custody, child support, alimony, and other forms of emergent relief can be addressed in a DV case.

It is also important to emphasize that once a domestic violence order is entered, the violation of that order carries the imposition of criminal penalties and the potential for jail. N.J.S.A. 2C:25-30. Therefore, because the stakes are so high in a DV case, it is imperative that a zealous defense is used to defend against a DV charge.

The bottom line is that a conviction for a DV charge can haunt a person for their life. I have represented a client whom I defended on a DV charge. He will remain nameless. He was ultimately convicted. The court advised him that it was not a criminal conviction when it entered a final restraining order against him. However, he was then fingerprinted. When he applied for employment, the background searches all showed that he was arrested and fingerprinted for a domestic violence charge. The new computer systems that companies use to conduct criminal background searches somehow pick up domestic violence charges. In today’s world it is extremely important to live a “squeaky clean” life. Companies now have the luxury of hiring from hundreds if not thousands of applicants. If a job applicant has some questionable marks on their criminal backgrounds search, then undoubtedly in many instances their resume will get stored in the circular file.

2. What is the time frames to defend against a domestic violence charge?

In the majority of the cases, domestic violence temporary restraining orders (TRO’s) are obtained through an ex parte court proceeding. The term ex parte means an application to the court without notice to the adverse party. As a result, the defendant will usually receive a copy of the TRO usually within 24 hours after it was signed by the court. The local police department or the county sheriff will then serve the TRO on the defendant. The final hearing for the domestic violence charge must be held within 10 days after the entry of the TRO. Therefore, a defendant who must defend against a domestic violence charge is immediately under severe time pressure.

In many cases it is advisable to obtain an adjournment to more fully prepare a thorough defense against the DV charges. However, please note that the temporary restraints that were issued by the court will remain in full force and effect until the final hearing. In most cases, the issuance of the TRO enjoins the defendant from returning to his or her home. In cases that involve custody, the temporary restraints may prohibit the defendant from having visitation with his or children. Therefore, it is important in any DV case to weigh the benefits of obtaining an adjournment, versus the detriments of having to live with the continuation of the restraints.

3. What are the jurisdictional requirements necessary to file a complaint for domestic violence?

A good lawyer will always analyze a DV case and assess if there are any jurisdictional issues to raise. Sometimes a crafty lawyer may be able to convince a judge to dismiss a DV case on technical grounds. Subject matter jurisdiction requires that the plaintiff or the person who files the DV complaint to fall within the category of persons protected by the Prevention of Domestic Violence Act. There are three basic categories of victims who can qualify to file a DV case;

1. Spouse, Former Spouse, or Former Household Member: The statute defines a victim of domestic violence as any person who is 18 years of age or older or an emancipated minor who has subjected to domestic violence by a spouse, former spouse, or any present or former household member. See, N.J.S.A. 2C:25-19(d).
2. Those Who Have a Child or Will be Having a Child Together: A victim of domestic violence also includes any person who has a child in common or anticipates having a child with the abuse where one of the parties if present.
3. Those Within a Dating Relationship: Finally a victim also includes any person who has had a dating relationship with the persons charged with domestic violence.

In summary, the concept of jurisdiction in the world of domestic violence law has expanded significantly. Originally, the domestic violence statute only afforded protection to married couples or to persons who lived together in a family-like setting. However, the New Jersey Legislature expanded the Prevention of Domestic Violence Act to now include “former household members” and “dating relationships.” These changes have resulted in an explosion of new domestic violence cases. Now same sex couples, roommates and many other types of plaintiffs can now readily file DV cases. As a result of these changes the courts now are flooded with DV cases.

In summary, it is very important to analyze the facts of the DV case to assess if there is proper jurisdiction for the entry of a final restraining order. If a “former household” member or if there is a “past dating relationship” type of fact pattern, then there is a reasonable chance that there might not be sufficient jurisdiction. If the DV case is not a particularly strong one, then in my experience many judges will grant a motion to dismiss the case if jurisdiction is questionable.

4. Why is it so important to thoroughly review the complaint for domestic violence?

After a TRO is entered, the local police department or the county sheriff is then required to serve a copy of the complaint upon the defendant. The complaint must allege that the act of domestic violence is based upon one or more of the following acts;

1. Assault
2. Terroristic threats
3. Sexual assault
4. Criminal sexual contact
5. Criminal restraint
6. Criminal trespass
7. Harassment
8. Stalking

The complaint will also indicate the date on which the alleged incidence occurred, and the plaintiff’s claim as to what happened.

The plaintiff is also required to file a form called the “Confidential Victim Information Sheet,” and another form called the “Victim’s Voluntary Statement Detailing a Prior History of Domestic Violence.” The Victim Information Sheet is completed by the victim, and it is then is given to a staff person at the Family Court Intake. The court staff person then uses this information to prepare the domestic violence complaint. There is some very critical information that is contained in the Victim Information Sheet. This information includes whether the plaintiff was injured, whether photographs were taken, and whether there was any property damage. This form also requires the plaintiff to provide a narrative and a description of the incident and why the plaintiff is seeking a restraining order.

The victim’s statements that detail any prior history of domestic violence are also critically important. This form must be thoroughly reviewed prior to trial. It is important for defense counsel to object to any testimony by the plaintiff of any prior acts of domestic violence that are not listed in the Victim Information Sheet.

5. Should I try to obtain copies of the police reports of the DV incident that was reported to the authorities?

In all DV cases it is very important to contact the local police department to ascertain if the alleged act of domestic violence was reported to them. If the DV incident was not reported to the local police, then this may be strong evidence that the offense did not occur. Moreover, this may also prove that there is not immediate danger to the alleged victim. If the DV case was reported then the police report(s) will indicate whether the police noticed if the alleged victim suffered any injuries.

In addition to the police reports, the local police department may also have the tape of the telephone call during which the incident was reported, an incident report which dispatched the police to the scene, and a DV offense report that is required under N.J.S.A. 2C:25-24. The main point is that a defendant must ascertain what the plaintiff told the police when the alleged act of domestic violence was reported. This information can then be used to impeach the alleged victim. In many instances the alleged victim’s version of events as reported to the police differs drastically from her testimony at trial.

6. Why is it important to try to obtain a copy of the transcript of the TRO hearing?

In some DV cases the stakes are very high. If a defendant is a law enforcement official, or if he has aspirations of becoming one, a conviction for domestic violence will ruin their career. A person who is convicted of a DV charge can’t own a weapon. A person can’t be a police officer or be in the military if he or she can’t carry a weapon. Therefore, in the DV cases where the stakes are very high then it is highly advisable to obtain the transcript of the TRO proceeding. The transcript will have to be ordered at the expedited rate. The cost to obtain the transcript will be around $300.

The transcript will give the defendant insight into the plaintiff’s version of the case. Moreover, the transcript can be used to impeach the plaintiff’s credibility. In some cases, the time constraints may make it impossible to obtain the transcripts. In those cases, then defense counsel should at least listen to the court tapes of the TRO case.

7. What type of witnesses can I call at the domestic violence trial?

The most important witness is an individual who witnessed the alleged act of domestic violence. Moreover, any person(s) who can testify to events immediately before or after the alleged act of domestic violence may offer some important testimony. These witnesses in many cases can offer insightful testimony that may bear on the accuser’s credibility.

A very difficult subject is whether to subpoena children and other family members as witnesses. In most DV cases a Superior Court judge will not permit a child to testify. The bottom line is that a domestic violence case most often takes place in the home. Therefore, in many cases the only witnesses are family members. In most DV cases the family members do not want to be forced to “take sides.” Therefore, only in the most urgent DV case should family members be called as witnesses.

8. What type of discovery should I obtain before the DV trial?

The time frame from the filing of the DV complaint to the actual trial is in the majority of the cases less than 30 days. Therefore, it is very difficult to conduct full discovery. The DV statute does not make any specific provisions for discovery. However the principles of due process and fair play mandate that all discovery be available case. Therefore, if the plaintiff alleges that she received an injury, then defense counsel should try to obtain copies of any medical records or reports regarding these allegations. Moreover, defense counsel should try to obtain copies of all evidence that the plaintiff will rely upon at trial. Defense counsel should obtain copies of all photographs, tape recordings, expert reports that the plaintiff intends to introduce as evidence at the trial. Moreover, defense counsel should seek a list of witnesses that the plaintiff intends to call at trial. Defense counsel should move to suppress any evidence or witness that is not produced in response to the discovery request.

9. How can I impeach the credibility of my ex-wife at the DV trial?

In most of the DV cases the question of whether an act of domestic violence occurred turns on “credibility.” This is because domestic violence cases frequently come down to the plaintiff’s word against that of the accused. The plaintiff’s credibility can be gauged in many ways including:

1. Is the plaintiff’s testimony at odds with what was alleged in the DV complaint.
2. Does the plaintiff’s testimony at the DV trial conflict with her testimony at the TRO hearing.
3. Is the plaintiff’s testimony consistent with what she told the police at the time of the incident.
4. Has the plaintiff filed prior domestic violence complaints that have been proven to be frivolous.
5. How much time has elapsed between the alleged act of domestic violence, the report to the police, and the ultimate filing of the DV complaint.
6. Can the plaintiff document by photograph or any other means the injuries the domestic violence or any injury.
7. Is there a pending divorce case in which the plaintiff will obtain an advantage by the entry of a domestic violence order.
8.  Have the parties reconciled or had sexual relations since the alleged DV incident.

10. Can my wife testify about any past history of domestic violence at the DV trial?

In many DV cases the victim quite frequently testifies as to any previous history of domestic violence. The domestic violence statute specifically permit plaintiffs to raise the previous history of domestic violence as a factor to prove the case. Defense counsel should always object if a plaintiff testifies as to an act of domestic violence that is not delineated in the complaint or in “Victim’s Voluntary Statement Detailing a Prior History of Domestic Violence.” Defense counsel should argue the inadmissibility of past allegations of domestic violence and cite the probative/prejudice balance under N.J.R.E. 403.

Another strong argument against admitting past allegations of domestic violence is that due process requires that a defendant have notice of the charges and an adequate opportunity to prepare a response. H.E.S. v. J.C.S. 175 N.J. 309 (2003). It must be emphasized that although the statute permits testimony regarding past acts of domestic violence, a final restraining order cannot be obtained sole on an alleged DV that was not specifically included in the complaint. An illustrative case is J.F. v. B.K. 308 N.J. Super. 387 (App. Div. 1998). Here the Appellate Division held that it constitutes a fundamental violation of due process if a defendant is convicted of domestic violence on charges that were not contained in the complaint.

11. What are the best defenses in a domestic violence case?

There are only two viable defenses for domestic violence cases and they are self-defense and de minimis infractions. The bottom line is that in many DV cases the plaintiff may suffer injuries because the defendant was legitimately defending themselves against imminent bodily harm. The doctrine of self defense provides that:

A person is justified under the statute using force upon or toward another person when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

The reality is that in most DV cases you have two parties, one weaker, one stronger, and the court is not going to believe that the stronger party used self-defense in order to fend off the advances of the weaker party.

The second best defense is that the alleged act of domestic violence is a de minimis infraction. A de minimis infraction is minor conduct that is too trivial to be considered a criminal offense. The de minimis infraction doctrine is primarily used to defend against DV cases based on the grounds of harassment.

12. How can I defend myself against a DV complaint based on harassment?

The offense of harassment is the most commonly alleged act of domestic violence. The reason for this is because it is probably the most nebulous in meaning of the various domestic violence offenses, and the one most susceptible to subjective interpretation.

Harassment is defined in the New Jersey Criminal Code as follows:

A person commits a petty disorderly persons offense, if with purpose to harass another, if he:

1. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
2. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
3. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

The bottom line is that there are many DV cases filed that are based on the grounds of harassment. Defense counsel should always argue that the alleged acts of harassment did not amount to a pattern of abuse and controlling behavior. A defendant must also possess a “conscious objective” to harass. Defense counsel must argue that the defendant never had any conscious intent to harass or annoy the plaintiff.

There are two major cases that must be mastered when trying a DV case based on the grounds of harassment. The first seminal case is Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995). This case stands for the principle that mere domestic contretemps do not constitute domestic violence. Here the aggressor husband called his wife at work and asked her for money. The wife was not permitted to receive calls at work. Thereafter, the husband threatened to take “drastic measures” if his wife did not produce the money, and he disconnected the wife’s phone service. The court held that these phone calls did not constitute domestic violence. The court focused on the way in which the New Jersey Legislature only intended to prove “regular serious abuse.” The court found that the husband did not intend to harass his wife by calling her at work. Finally, the court held that neither the phone calls, nor the turning off of the phone were acts that could be characterized as alarming or seriously annoying.

Another important case is Peranio v. Peranio, 280 N.J. Super. 47 (App. Viv. 1995). Here, the court held that the husband’s statements to his wife did not rise to the level of harassment. The husband told his wife that they were “beyond words” because of their disputes over marital assets. Moreover, the husband told his wife that he would “bury” her as he was leaving with the children. The court held that there was no finding that the husband intended to harass his wife, and that even if his comment was alarming to his wife, it did not constitute domestic violence.

14. Can a domestic violence complaint be settled prior to the final hearing?

It is always advisable to try to settle a domestic violence case before the trial. There are no winners in a DV case. The only issue is who loses more. I always try to work out a settlement for all DV cases. There are two avenues to pursue in attempting to reach a settlement. First, defense counsel may attempt to try to convince the plaintiff to dismiss the case. In many cases, a married couple simply needs some time apart or some marriage counseling. If a married couple still want to keep the marriage intact then a full blown DV case can be very harmful to the marriage. Before a plaintiff can dismiss a case she is required to have a meeting with the representatives of Women Aware. Women Aware is an organization that provides emotional and psychological counseling to victims of domestic violence.

The second way to resolve a DV case is when the parties agree to enter into “Civil Restraints.” “Civil Restraints” is simply an agreement by the parties wherein they agree to leave each other alone. The court will then memorialize this agreement by entering a court order that civilly restrains the parties from having contact with each other. The main distinction between “Civil Restraints” and a final restraining order is that a defendant can’t be arrested if he or she violates an order that grants “Civil Restraints.” Meanwhile, if a person violates a restraining order, then he or she can be immediately arrested. The bottom line is that an order that grants “Civil Restraints” really does not have any teeth to it. It is not enforceable by the police or by the county prosecutor. Meanwhile, if a defendant violates a restraining order then he or she could be immediately arrested and locked up.