Table of Contents
Introduction to the legal system
Domestic violence cases may involve both civil law and criminal law. Different courts handle the administration of civil and criminal cases. Your complaint may go to either or both of these courts.
The civil law system. The Prevention of Domestic Violence Act, which authorizes restraining orders, is a civil law. Under civil law, one person may sue another person for a private wrong. In a civil domestic violence action, you ask the court to give you protection from the person who is abusing you. You do not ask the civil court to put the person in jail for committing a crime. In a civil case, you are the plaintiff and the opposing party, the abuser, is the defendant. Both parties may hire lawyers. In civil court, the judge cannot appoint an attorney for either party. Other common legal actions brought in civil courts are suits for divorce and suits to recover money for personal injuries or damages.
The criminal law system. The criminal law system handles cases that involve violations of criminal law, such as harassment, assault, murder, theft, etc. Because the state has a duty to protect its citizens, all violations of state criminal laws are considered public wrongs and crimes against the state. A prosecutor represents the state by prosecuting those accused of committing crimes. You, the victim, are a witness for the prosecutor’s case.
A person accused of a crime is called the defendant. The defendant can hire a lawyer to represent him/her in court. If the defendant can’t afford a lawyer, he/she may be able to have one appointed.
You can file both a criminal complaint against your abuser and a civil complaint for a restraining order for the same act of domestic violence. You can also file only one type of complaint and not the other if that is what you choose to do.
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Filing criminal charges
The police also have the authority to file a criminal complaint against the abuser and the prosecutor may press charges and prosecute, even against the wishes of the victim. You may receive a subpoena, which is a court order to testify about what happened. The prosecutor may suggest the relief that you believe is appropriate in addition to or instead of jail time. If you are successful, your abuser may be ordered to pay a fine, or placed in jail or on probation. A criminal complaint, however, will not necessarily protect you from your abuser if your abuser is not restrained from contact with you.
A criminal complaint involves charging the defendant with a crime. If the police file criminal charges against your abuser, you, as the victim of the crime, must appear in court as the state’s witness in order for the case to proceed. It is necessary that you appear in court so that you can testify about what happened and suggest the relief that you believe is appropriate in addition to, or instead of, jail time. That relief may include psychological assessment and treatment and/or alcohol testing and treatment, etc. Without your complaint and testimony in court, the prosecutor will probably choose not to pursue the case. In some circumstances, where signs of abuse are not visible, the police do not file the complaint. You, however, can still file a criminal complaint and proceed on your own.
Once a criminal complaint has been filed, the defendant can be arrested. If you decide to file criminal charges against your abuser, you should be aware that, unless the situation is extreme, the defendant will probably be released from police custody/jail on bail or on his/her own word. The judge may allow the defendant to come home to pick up personal belongings. If this happens, ask the judge to limit the time the defendant can stay in the home and to specify what things he/she can take. Also ask the judge to require that a police officer be present when the defendant comes to get his belongings.
As the victim, you may write to the court to indicate why you do not want your abuser released. You should be specific about the serious nature of the acts of violence he has committed. You can also ask that, as a condition of bail, he be restrained from contact with you, regardless of whether or not you also have a civil restraining order. It is important to give the court and law enforcement officers several addresses and telephone numbers where you can be reached and to update them if you move. Let the court and police know that this information must be kept confidential. You may file a Victim Notification Form, requesting that you be notified if your abuser is released from jail.
Eventually, a court hearing will be scheduled at which you must appear and testify. If the defendant is found guilty, the judge will sentence him/her. Such sentence may include imprisonment, probation, or a fine. It may also require that the defendant undergo counseling for psychological problems, attend a batterers’ intervention program, or receive treatment for drug/alcohol abuse.
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Using civil law — the Prevention of Domestic Violence Act
The Prevention of Domestic Violence Act is a New Jersey civil law that offers legal help to victims of domestic violence. You may be able to use this law to get a court order restraining your abuser from coming near you if:
- You are 18 or older or an emancipated minor who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member; or
- You are a person, regardless of age, who has been subjected to domestic violence by a person with whom you have a child in common, or with whom you anticipate having a child in common, if one of the parties is pregnant; or
- You are a person, regardless of age, who has been subjected to domestic violence by a person with whom you have had a dating relationship. This includes same-sex dating relationships. A judge will decide whether a dating relationship existed based on the nature and frequency of interactions between the parties, the expectations of the relationship, whether there was an affirmation of your relationship before others, and other factors.
Note that, in order to obtain a restraining order against the abuser under the Prevention of Domestic Violence Act, the abuser must be 18 or older or an emancipated minor (this includes parenting a child).
What is required for a temporary restraining order (TRO). If you and your abuser have a relationship covered by the Prevention of Domestic Violence Act (as described above), and your abuser has committed at least one act of domestic violence against you, you should be able to get a temporary restraining order (TRO). When you go to court to file a domestic violence complaint (see below), be sure to list every act of domestic violence, if there is more than one. The TRO remains in effect until your final hearing, which is generally in about 10 days. At the final hearing, a judge will decide whether your TRO should become a final restraining order (FRO).
To get a TRO, you must state that at least one specific act of domestic violence has been committed against you by the abuser. Some of the more common examples of domestic violence that qualify you for a restraining order are:
- Harassment—Harassment has occurred when someone contacts you repeatedly, at extremely inconvenient hours, in offensive language, or in another manner likely to annoy or alarm you. For example, your ex-boyfriend calls you 20 times in a day, after being told that you never want to see him/her or speak to him/her again. Harassment also occurs if a person subjects you to offensive touching (like spitting, hitting, shoving, or hair pulling), even if you weren’t physically injured as a result. A judge must consider your past history with the defendant in deciding whether harassment has occurred.
- Terroristic threats—A terroristic threat is a threat to kill you or to commit any crime of violence in order to put you in imminent fear of death. A judge will consider your history with the defendant in determining whether a threat against you should be considered a terroristic threat.
- Assault—An assault occurs when one person causes or attempts to cause bodily injury to another person (for example, your abuser hits or kicks you, or throws something at you).
- Criminal mischief—Criminal mischief occurs when someone intentionally damages your property. Examples include your abuser breaking down your apartment door, throwing a rock through your window, or slashing your car tires.
- Stalking—Stalking occurs when a person purposely and repeatedly follows you or watches you, which causes you to be afraid for your safety.
Other acts of domestic violence include homicide, kidnapping, criminal restraint, false imprisonment, sexual assault, lewdness, burglary, criminal trespass, and criminal sexual contact.
Relief available with a temporary restraining order. A TRO is a temporary court order, which may provide several forms of relief. A judge may grant some of the things listed on your TRO, and additional relief if and when your TRO becomes an FRO. A TRO may include one or more of the following types of relief:
- That the abuser’s weapons be seized (see Weapons);
- That the abuser is temporarily forbidden to have contact with you, your relatives, and other people you identify as being at risk;
- That the abuser is temporarily forbidden to enter the location where the violence occurred and the home you share;
- That you are granted sole possession of the home you shared;
- That you are granted temporary custody of the children;
- That the abuser must provide financial support temporarily for you and your children;
- That you have temporary possession of a car, a key, a health insurance card, a checkbook, passport, immigration documents, birth certificates, or other things that you might need;
- That the abuser’s parenting time with the children be restricted;
- That a risk evaluation be performed to determine what type of parenting time is appropriate;
- That the abuser receive psychological counseling or counseling for substance abuse;
- That the defendant must refrain from access to any joint and/or marital finances where it is appropriate.
There are other provisions to protect and help you that can also be included in a restraining order. You can discuss these with a lawyer.
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How to get a temporary restraining order
To get a TRO, you may file a complaint at the Family Part of the Superior Court during regular court hours. On weekends, holidays, and other times when the courts are closed, you should ask the police to help you get a TRO. They can help you apply to a municipal court judge for an emergency TRO.
At the Family Part of the Superior Court, an intake worker or court advocate usually helps you fill out the forms. Your location can be kept confidential. It is important for you to make sure that the most recent act(s) of domestic violence, as well as prior acts of violence against you, are listed on the forms. If an incident is not mentioned, the judge may not allow you to bring it up in court. Prior acts of violence include any incidents of domestic violence that occurred in the past, whether or not they were reported to the police, even if there was a lack of physical evidence, and if the act was physical or verbal.
If you are not able to get to the Family Court or to speak to the police—for example, if you are in the hospital or if you are bedridden—a friend or a counselor can file a domestic violence complaint and ask the judge for a TRO on your behalf.
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How to get a TRO changed to a final restraining order (FRO)
If the judge grants you a TRO, the order is only valid until the hearing date. A full hearing should take place at the Superior Court within 10 days. You must appear in court at that time and tell the judge your side of the story. The abuser will also be there and will have an opportunity to tell the judge his/her side of the story. If you do not appear in court on the specified day, the complaint may be dismissed. A dismissal leaves you without protection from your abuser, and may leave you without legal custody of your children if there is no other order in place.
If you have any witnesses to the violence, they should go to court with you. If possible, you may want to have a lawyer with you in court, particularly if you think your abuser will have a lawyer. When you go to court you should take:
- Pictures of your injuries;
- Police reports;
- Certified medical reports;
- All other evidence you have to prove the incident of domestic violence that is the basis of your complaint; and
- If you are asking for support from your abuser, bring proof of your income, your abuser’s income, and your expenses (e.g., pay stubs, tax returns, rent receipts, utility bills, etc.).
In court, both you and your abuser will tell your sides of the story and present witnesses. You or your attorney will be able to cross-examine (question) the abuser and his/her witnesses. The abuser or his/her attorney will also be able to cross-examine you. Based on all of the testimony, the judge will decide if a final restraining order should be granted.
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How a final restraining order can help you
An FRO will stay in effect permanently unless you or your abuser get the court to dismiss the restraining order. Unlike a TRO, an FRO can provide you with continuing protection, support, and other relief. An FRO may provide one or more of the following types of relief to victims of domestic violence:
- Restraints—The abuser can be forbidden from having contact with you, your relatives, and anyone else you name at home, work, school, or anyplace else.
- Exclusive possession of your home—The abuser can be ordered to move out of the house or apartment you share. In other words, you can be awarded exclusive possession of the home. The judge cannot order “in-house restraints,” which would allow the abuser to share the house with you. The abuser can be required to make rent or mortgage payments and utility payments for your home.
- Custody—You can be awarded temporary custody of the children. The judge is supposed to let you—rather than the abuser—have the children, unless the abuser can convince the judge that you are unfit due to psychological problems, drug/alcohol abuse, etc. This differs from a regular custody case, where both parents stand on the same footing. The judge is required to assume that the children are better off with the parent who is not violent.
If you leave your abuser because of domestic violence, you should take the children with you, if at all possible. If you want custody of the children in the future, your chances are usually better if you have them with you.
- Parenting Time—The judge will usually grant parenting time (previously known as visitation) to the parent who does not have custody. The schedule set up by the court should avoid contact between you and your abuser, to help prevent further abuse. If you have a restraining order, parenting time should never be set up so that you and your abuser are alone at your home for the pickup and delivery of the children. Such an arrangement is a violation of the restraining order. Ask the judge to specify the parenting time schedule and procedure in the restraining order. For example, the abuser can be required to pick up and return the children at your curb, at the home of a neutral third party, or in a public place such as a police station.
If you are worried about your children’s safety while they are visiting with the abuser, you can ask the judge to order a “risk assessment.” This is an evaluation of the abuser to determine whether unsupervised visits will endanger the children. You must tell the judge the reasons for your concerns about parenting time (drug or alcohol abuse, or previous abuse or neglect of the children). You can ask the judge to order that parenting time with the abuser be supervised by a third party, such as a friend or relative, or through a county-run program, until the risk assessment is complete and the court feels that the children are safe. If the abuser mistreats the children during visits after your hearing, you can return to court and file an application for an emergency hearing. You can then ask that the parenting time be suspended immediately.
- Support for you and your children—The judge can require the abuser to immediately pay you support to meet your expenses. The judge may order the abuser to pay you emergency support on a temporary basis. The judge may also order ongoing child support, spousal support, or support for a registered domestic partner, and continued financial support for other expenses, such as housing costs, utilities, child care, and other ongoing expenses.
In determining how much support you are entitled to, the judge will want to know about your income and expenses and your abuser’s income and expenses. It is important to take any financial records to court with you. The judge also can order the abuser to keep you and your children on the abuser's health insurance policy, or to provide medical coverage for you and your children.
- Weapons—The abuser can be forbidden to possess a gun or other weapon. The judge can order the police to take the abuser’s weapons away and revoke the abuser’s weapons permit so that he/she cannot get another gun. When the police seize weapons from the abuser, the prosecutor takes possession of the weapons. A separate “weapons hearing” is held no later than 60 days from the time the police take the weapons. The prosecutor represents the state’s side of the case. You will be notified of the date of the weapons hearing and may choose to attend. You are not required to attend the weapons hearing. At the weapons hearing, the court will determine whether the weapons should be returned to the abuser. Let the prosecutor know in writing if you would like weapons to be permanently removed. The court can do this and can take away any and all permits or licenses to possess weapons that the abuser may have. (Note: Weapons mean more than just guns; weapons include knives, brass knuckles, etc.)
- Damages—The abuser can be required to pay you back for any losses related to the domestic violence, such as moving expenses, counseling costs, lawyer’s fees, medical bills, time lost from work, or any money you spent to repair damage he/she did to you or your property.
- Counseling—The abuser can be required to attend professional counseling for domestic violence behavior, drug and alcohol abuse, or any other counseling that might be helpful. The judge can order the abuser to report back to Family Court with proof of his/her attendance at counseling sessions.
- Property—You can be given temporary use of property such as a car, a checkbook, a key, a health insurance card, etc.
If the court makes a temporary decision about custody, visitation, or child support at the domestic violence hearing, either party can seek to modify the decision by filing a motion with the domestic violence judge or by filing a divorce action or a separate custody or child support complaint, in which a judge will decide these matters after a longer hearing. The judge cannot grant you a divorce at a domestic violence hearing.
Both TROs and FROs are valid everywhere in New Jersey. The local or state police must enforce your restraining order, even outside of the county where you got the order. The orders are also valid in all 50 states. If you move to another state, you can contact the Family Court and ask for information about how to register your restraining order in the new state.
Fines against defendant. When the court grants an FRO, the defendant will be fined. The fine will range from $50 to $500, depending on the nature and degree of your injury, and will go to a special fund for domestic violence victims. The fee will be waived only if the defendant demonstrates extreme financial hardship.
Steps to take after you receive a final restraining order. You should receive a copy of the final order immediately after your final hearing. This order is the written document that explains the current legal status of your case. It is, therefore, very important that you keep a copy of it with you at all times. Someone from the Family Court staff may also give you an extra copy to take to your local police department. It is important that you also do the following:
- Review the order before you leave the courthouse. If something is wrong or missing, ask the court clerk to correct the order before you leave.
- Make several copies of the restraining order as soon as you can. Keep one copy of the order with you at all times. Also, leave a copy of the order at your home in a safe place that is easy for you to get to in an emergency. Give a copy of the final order to each of your children’s schools, day care programs, or babysitters.
- Give a copy of the order to a sympathetic neighbor or to nearby relatives.
- Give a copy to any of your relatives or friends who are named and protected by the order.
- If the court has not given you an extra copy for your local police, take one of your extra copies and deliver it to them.
- Give a copy to the security guard or person at the front desk where you live and work.
It is important to give copies of your restraining order to all of these people in case your abuser attempts to violate the final order. You (or someone on your behalf) have to be prepared to inform the police that you have a restraining order, and the best way to do this is to show the police a copy of your order.
You may also want to consider changing your locks or your telephone number. If the abuser has your telephone number, you may wish to contact the telephone company to find out what kinds of services are available for dealing with annoying phone calls.
IF YOU ARE NOT a United States citizen and you need a restraining order. A restraining order is available, as is any relief listed above, regardless of your immigration status. Immigrant women need protection, shelter, and custody of their children, just like other victims of domestic violence. They may, however, have additional legal concerns. It is very important for victims who are immigrants to speak with an immigration lawyer. They may qualify for lawful permanent residence (LPR) status under a federal law known as the Stop Violence Against Women Act (VAWA). For more information, see Immigration Relief for Victims of Domestic Violence.
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Getting legal advice
You should talk to a lawyer before you take any legal action, particularly if you have children and anticipate custody or visitation problems, or if you have an interest in personal or real property. Because time with a lawyer is expensive, prepare for the session in advance by thinking through everything you want to know and writing down your questions. Some domestic violence service providers have legal advocates or volunteer lawyers who conduct legal clinics where you may obtain legal advice. The legal advocates are usually not lawyers, but they are specially trained. These advocates can help you prepare to talk to a lawyer and focus your questions. This will help you to save time and money. Never take legal advice from someone who is not a licensed attorney. Well-intentioned friends and relatives may offer opinions, but they are often misguided. You should only take legal advice from a lawyer.
In addition to writing down the questions you will be asking a lawyer, you should also gather together all of the information that may be useful to the lawyer. For example, you may want to take with you previous court orders and other important documents or evidence regarding your case, such as police reports, photographs of injuries or property damage arising from the domestic violence, copies of your bills for medical care, as well as your monthly bills for rent, utilities, etc. If you need information about alimony and child support, take a detailed budget of your day-to-day expenses.
Everything you say to a lawyer is confidential. If you are still living with your abuser when you see a lawyer and you do not want your abuser to know that you talked to a lawyer, tell your lawyer not to call or write to you at your home. Be sure to tell your lawyer how he or she can safely get in touch with you.
Lawyers’ fees vary. Don’t be shy about discussing fees. If you cannot afford the fee, be honest. In addition to the lawyer’s fee for services, there are also additional costs for filing certain legal papers with the court. The lawyer will probably want this money in advance. Shop around and find a lawyer you can afford. The New Jersey State Bar Association publishes a free directory, listing lawyers who handle issues related to women. To obtain a copy, call the New Jersey State Bar Association at 732-249-5000. You may also want to contact your county bar association’s lawyer referral service. The number is listed in your local phone book.
If you need the advice of a lawyer but cannot afford one, you may be eligible for free legal advice or representation from Legal Services. The addresses and telephone numbers of New Jersey’s Legal Services programs are listed on our Web site. You may also contact the toll-free statewide legal hotline, LSNJ-LAW™, at 1-888-LSNJ-LAW (1-888-576-5529). The hotline provides information, advice, and referral in civil legal matters to eligible low-income residents of New Jersey. You may also qualify for representation by LSNJ’s Domestic Violence Representation Project or Immigration Representation Project (see If you need a lawyer).
If you end up going to court by yourself, read this handbook carefully. Take notes on what you read and make notes about your situation. Review your notes before you go to court. If you are prepared, you will be more at ease. Be prepared to give the judge a detailed account of the violence and abuse that just occurred and what has occurred in the past. Organize your evidence, such as photographs and medical and police reports. Prepare a list of your expenses if you are going to ask for support.
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What to do if your abuser violates the TRO or FRO
In order to enforce your domestic violence restraining order, you must first determine what part of the court order your abuser is violating. Part I of the order covers the no-contact provisions and the surrender of weapons. Part II addresses, among other things, visitation and support. The law addresses violations of the two parts differently.
Violations that are criminal. If your abuser violates the no-contact portion of the court order (either the TRO or the FRO), he/she may be found guilty of criminal contempt. The parts of your domestic violence restraining order that will be enforced by a criminal contempt charge are set forth in Part I of the order.
The most common examples of the crime of contempt of a domestic violence order are when an abuser continues to harass the victim by telephoning, threatening, stalking, or even physically harming the victim. In any of these cases, the abuser should be charged with contempt. If your abuser is doing any of these things to you, and you feel you need the immediate assistance of the police, you should call them. If the police officer who responds to your call has reason to believe that a restraining order has been violated, that officer should arrest the abuser, and immediately charge him/her with contempt.
Your abuser may also be charged with whatever crime he committed in violating the order. For example, if the abuser violates the order by punching the victim, he/she should be charged with assault in addition to the contempt. Note: Depending upon the severity of the crime, the criminal proceeding for contempt may be heard in a different court and at a different time from that of the proceeding for the crime.
If the abuser is violating the restraining order but you don’t feel you need to call the police for immediate help, you can still file a police report or criminal charge with the police at your earliest opportunity.
When an abuser violates the no-contact provisions of a restraining order, the county prosecutor’s office will decide whether to seek to indict the abuser for the crime of contempt. This decision is made primarily by looking at the seriousness of the violation. In those cases where the abuser has violated a restraining order in a particularly serious manner—for example, by committing an aggravated assault—the prosecutor is likely to bring the case before a grand jury to seek an indictment. If the abuser is indicted, the case will proceed before a judge in the Superior Court, Criminal Division.
In cases where the abuser has violated the order in a less serious way, such as by continuing to telephone the victim, the prosecutor is unlikely to seek a formal indictment. Instead, the prosecutor will proceed on the criminal charges in a hearing before a municipal court judge, while the contempt hearing will take place before a Family Court judge. It is important to remember that even though contempt cases may be heard in the Family Court, they are still criminal cases. Since the abuser may be sentenced to jail, he/she has the right to have an attorney represent him/her.
In all criminal cases, a preliminary decision will be made regarding bail. Before a defendant is released on bail, an effort is supposed to be made to notify the victim that the abuser is going to be released from jail. For this reason, you must keep the prosecutor’s office and the Family Court notified of any change in your address or telephone number. Have a Victim Notification Form on file. This information will be kept confidential.
It is important to try to maintain an active role in your case. Try to find out which prosecutor will be handling your case. Familiarize the prosecutor with your case, especially by telling the prosecutor about any witnesses or evidence that you think may be useful in the prosecution of the case.
Sometimes victims who file contempt charges drop the charges because they believe their abuser may go to jail. Although incarceration is possible, and many times deserved, it is not the only potential remedy. Sometimes the criminal sentence for contempt of a restraining order may be a period of probation, a fine, or a suspended sentence on the condition that the abuser attend counseling. You should discuss these possibilities with the prosecutor.
Violations that are not criminal. If your abuser violates the portion of your domestic violence restraining order that deals with visitation, monetary compensation (spousal or child support), rent or mortgage payments, or the distribution of personal property, you may enforce the order by filing a motion in the Family Court. The portions of the court order that are enforced by bringing an application in the Family Court are set forth in Part II of the order.
Typical violations to be enforced in the Family Court include the abuser’s failure to follow the visitation schedule by not returning the children home on time; failure to pay child support as ordered, or failure to return certain items of property to the victim as ordered. In all of these cases, the victim has the right to go to Family Court and file a motion to enforce the terms of the order. Different counties have different forms for seeking enforcement, but in most counties the process is called a Motion for Enforcement of Litigant’s Rights. The desired result in these hearings is to get the abuser to comply with the order, or sometimes even to modify the order. While the abuser is not charged with a crime, a judge in certain situations may feel it is necessary to temporarily incarcerate an abuser to gain his/her compliance.
Since most child support orders are made payable through the Probation Division, a victim who is not receiving the support ordered by the court should contact her Probation Division caseworker. That worker should be able to advise the victim what steps have already been taken by the Probation Division to enforce the order. The Probation Division must assist the victim in obtaining support, including bringing the case back to court for enforcement if necessary.
Dismissing a restraining order. In order to dismiss an FRO so that it no longer applies, the party seeking to dismiss the order must file a motion in Family Court. If a defendant seeks to dismiss the order, the court must determine whether there is good cause. In deciding whether good cause exists, the court will consider a number of factors, including: (1) whether the victim consents; (2) whether the victim fears the defendant; (3) the nature of the current relationship between the parties; (4) whether the defendant has been convicted of contempt for violating the order; (5) whether the defendant abuses drugs or alcohol or has been violent with other people; (6) whether the defendant has engaged in counseling; and (7) whether the victim is acting in good faith when opposing the defendant’s request. When a victim seeks to dismiss the order, the judge must make sure that the request is voluntary and not coerced. Some courts may also apply a good cause test to the victim’s motion, although most will not.
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Further legal options
Divorce. If you are being abused, your main focus should be on taking steps to stop the violence by seeking shelter, getting a restraining order, or filing criminal charges. Safety should be your first concern. After the situation is under control and you are safely settled, you may want to get a divorce. When you do initiate a divorce, you may find that your spouse becomes violent again. Make sure your safety measures are all in place.
There are several grounds for divorce in New Jersey, one of which is extreme cruelty. Extreme cruelty includes physical and/or mental cruelty that endangers your safety or health and makes it unreasonable for you to continue living with your spouse.
Other frequently used grounds for divorce are:
- Desertion—If your spouse has willfully left you for 12 or more consecutive months, you can file on this ground.
- Separation—Spouses must have lived apart for 18 or more consecutive months and have no reasonable chance of getting back together. This is a type of no-fault divorce.
- Irreconcilable differences—This is another type of no-fault divorce where you and your spouse have experienced irreconcilable differences for a period of at least six months, and there is no reasonable hope of reconciliation. You do not have to separate or live apart to get a divorce based on irreconcilable differences.
- Adultery—The adultery can occur either while together or after a separation.
- Voluntary addiction to a narcotic drug or alcohol—The addiction must have gone on for 12 or more consecutive months after the marriage.
- Mental illness—The spouse must have been in an institution for 24 or more months after the marriage.
- Imprisonment—The spouse must have been in prison for 18 or more consecutive months after the marriage. This ground for divorce can be used after the spouse has been released from prison, but only if the husband and wife have not started living together again.
- Deviant sexual conduct performed by your spouse without your consent.
If you are considering a divorce, you should consult a lawyer to discuss your situation, especially if you have children or own property.
Child custody, visitation, and support. Issues of custody, visitation, and financial support can be handled at a restraining order hearing, in a divorce, or in a separate Family Court action. If these issues are decided at a domestic violence hearing, they will be considered emergency orders and either party can file a divorce action, or a separate custody or child support complaint, and have these matters decided on the basis of a more complete hearing. Custody, visitation, and child support decisions are always subject to modification if one party can show that the parties’ circumstances have changed so that the earlier decision should be re-examined.
- Child custody—Without a court order, you do not have legal custody, even if your child has always lived with you and you have been the primary caretaker of the child. Both parents have equal rights and responsibilities regarding the children until a court has determined otherwise and entered an order. If you do not file for a restraining order or for divorce, you may want to file just for child custody. In a separate custody action or a divorce action, the judge will base the custody decision on the best interests of the child(ren). Be sure to tell the judge about any history of domestic violence. The abuser’s violence towards you is an important factor in a custody case. Again, if you leave your partner because of domestic violence, it is important to take your children with you if you can. You may have a better chance of retaining custody if your children are with you. (Note: The custody standard in a separate custody action is different from the standard in the domestic violence case. In the domestic violence case, the judge must assume that the child will be better off with you unless the abuser can prove that the children will not be safer with you.)
- Relocation/removing the children from New Jersey—You may not move out of New Jersey with your children who are natives of New Jersey, or have lived here for five years, without the permission of the other parent or a court order specifically allowing you to do so. This is true even if you have legal custody. If you take the children from New Jersey in order to deprive the other parent of custody or visitation time, or to evade jurisdiction of the New Jersey courts, you may be arrested and charged with interference with custody.
If you are unable to obtain the consent of the non-custodial parent, you must file an application with the court, asking for permission. The court will focus on whether you have a good faith reason for relocating with the children and whether they will suffer from the move. To make its determination, the court will consider the following:
- The reasons given for the move and the reasons the non-custodial parent is opposing it;
- Whether the children will receive similar health, education, and leisure opportunities;
- Whether a parenting time and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the children; and
- The likelihood that you, the custodial parent, will encourage the relationship with the non-custodial parent if the move is allowed.
The court will also look at other factors, such as the preference of the child if s/he is of age, the effect of the move on the extended family relationships, and generally any other factor that has a bearing on the children's interest. In determining the advantage of the move, courts have considered the cost of living in the other state compared to New Jersey
- Parenting time/visitation restrictions—If you are granted legal custody of your children, the other parent usually will be granted visitation (parenting time). Even if these matters are not decided as part of a restraining order, you can and should still ask the judge to set up visitation so that you won’t have to have any contact with your abuser. If you think that the abuser may harm the children, you can ask that visitation be supervised by a third party, or that the abuser be investigated for problems such as drug or alcohol abuse.
- Support—If you do not have a court order for child support, you should file a complaint in Family Court. A court hearing will take place regarding your finances, your abuser’s finances, and your need for support. The court will then decide how much child support you will receive for your children. The order will set the amount and method of payment. Most child support orders will require that support payments be withheld from the non-custodial parent’s paycheck. You may request that child support payments be made through the New Jersey Child Support Program administered by the Probation Division in your county of residence instead of directly to you. This is a potential benefit since the Probation Division is responsible for tracking payments and enforcement. When child support is collected through the New Jersey Child Support Program, you can obtain current information on your account by contacting the statewide child support hotline at 1-800-621-KIDS (5437). To have your support collected through the New Jersey Child Support Program, contact your local Probation Division or find the application and detailed instructions in Internet.
If you are receiving a welfare grant, the county welfare agency will proceed against the father of your children for a child support order on your behalf. The county welfare agency is entitled to keep the child support as long as it does not exceed your monthly grant. You will only receive the first $50 collected each month. If your child support exceeds your grant, you may be terminated from welfare and you will have to live on the support instead.
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Copyright © 2010 Legal Services of New Jersey
This information last reviewed 11/2/11