Did You Know
Divorce Resources - Maleski Eisenhut & Zielinski, LLC, Flemington NJ

No Advantage -

The spouse who files for divorce first, does not have an upper hand or advantage in the outcome of alimony, child support or custody.

Restraining Orders

What are Restraining Orders and How do They Work?

"Restraining Orders" are meant to protect victims of "Domestic Violence" from those who have committed an act of domestic violence. Offenses that form the basis of a Restraining Order frequently are harassment and assault, but may be homicide, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass and stalking.

A party frequently applies to the court or to the police who direct the party to a judge. The judge then determines if a Temporary Restraining Order is warranted. If so, the Defendant is served with the TRO and removed from the living quarters. Simultaneously, other financial relief may be temporarily granted, until the hearing. A hearing normally takes place within ten days. The court takes testimony and reviews exhibits. This "quasi-criminal" proceeding may lead to incarceration. Separate criminal actions may be filed in the municipal or Superior Court Criminal Part.

Courts have held that arguments between spouses in the midst of a divorce are merely "domestic contretemps" and do not rise to the level that require a restraining order. However, each case is fact sensitive. Any history of domestic violence between the parties may be admitted into evidence.  Credibility is frequently an issue.

If the court finds that an act of domestic violence was committed and that a Final Restraining Order is warranted, the offending party is barred from direct or indirect communication with the victim, and possibly other family members, under penalty of further charges and incarceration. Other relief is available in the form of support, custody, parenting time and counsel fees.

If a person feels threated because of actions or communication made by a spouse or significant other, or other member of a family, the threatened person should contact the police for instruction. Victims of domestic violence frequently make a record of written or spoken communications from the aggressor to support the claim. Local support groups, such as SAFE (include a link to the SAFE website or contact info) in Hunterdon County provide counseling and advice.

Final Restraining Orders can complicate divorce proceedings and may result in increased counsel fees, in part because all communication must be made through counsel when a party is prohibited from contact to the other.

Parties should never use a restraining order as a weapon to gain advantage in a divorce or to remove a spouse from the marital residence without just cause. This is an abuse of judicial resources.

In a stressful situation where there are resources or alternative living arrangements, and if the safety of the parties is not at risk, an appropriate remedy may be civil restraints. The parties enter into a consent order in the divorce litigation wherein the parties agree on limited communication except as provided in the agreement. However, civil restraints do not carry the same level of protection to a victim as a TRO or FRO. For example, they do not provide for police response to a violation. The violation of a restraining order will result in the aggressor's arrest and possible jail time. In contrast, a violation of a civil order for restraints must be brought to the court's attention by filing a motion. Thus, violations of civil restraints may result in non-criminal punishment such as a monetary sanction or other civil relief.