It’s not uncommon for one or both parties involved in a divorce proceeding to obtain a restraining order during the divorce process. Restraining orders are a part of many divorce cases and are an important protection that is necessary to prevent domestic violence and allow victims of violence or threatened violence to live their lives safely. There is no question that restraining orders are necessary and appropriate most of the time they are issued. However, restraining orders can sometimes be misused as a tactic in a divorce.
Restraining orders can be issued where the victim has been harassed, stalked, assaulted, threatened or the victim of criminal mischief. Many people in a divorce may feel they have a good case for a restraining order because a marriage that is heading towards divorce often becomes very volatile, at least for a short time.
The domestic violence law in New Jersey is drafted to ensure that a victim of domestic violence feels protected and safe. In that regard, often times the judges hearing a domestic violence case will award exclusive use and occupancy of the home to the victim and order that the perpetrator must reside outside of the home. In a matter where both parties wish to retain the marital residence, this may give the victim spouse who is permitted to remain in the home an upper hand in the overall settlement of this issue.
Additionally, domestic violence between the parties or in the home is a factor that is considered when a judge addresses custody. Just as with the marital home, judges hearing a domestic violence matter will likely order that the children will reside primarily with the victim during the divorce proceedings. This is intended to protect the children and act in their best interests by protecting them from a potentially volatile parent. However, it can also give the victim parent an advantage in a custody dispute, as it may set the stage for a new “status quo” custody arrangement.
Restraining orders, while certainly necessary for the protection of victims, can also complicate the divorce proceeding in other ways. A party who has a restraining order against the other will have no option but to have counsel resolve all issues, even minor aspects of parenting time that may arise. For example, when a restraining order is in effect, a parent who is running late to a parenting time exchange may not have a way to communicate that to the other parent other than asking their attorney to relay the message. This is especially true in cases with very young children who may not yet have cell phones or other means to communicate with their parent.
Domestic violence is a very serious subject. The impact that a restraining order may have on your divorce should be fully explored with your attorney. If you have questions regarding the impact a restraining order may have on your divorce proceeding, please call the attorneys of DeTorres & DeGeorge today at 908–284–6005 or 973–264–6100.