It is estimated that one in three women and one in four men will be a victim of domestic violence at some point in their lives. When domestic violence occurs within a marriage, this can affect divorce proceedings in several different ways.
Criminal Charges Are a Separate Legal Matter
Domestic violence can involve a number of criminal charges, including assault, stalking, harassment, breaking-and-entering, rape, or kidnapping. These charges can carry stiff penalties, but resolving them is considered a separate legal matter. Someone accused of domestic violence will need to hire a criminal defense attorney as well as a divorce lawyer.
Domestic Violence as Grounds for Divorce
In New Jersey, the vast majority of divorcing couples use the no-fault divorce process which simply lists irreconcilable differences as the reason for ending the marriage. However, New Jersey does allow a fault-based divorce based on extreme cruelty. This includes physical, sexual, and verbal abuse as well as financial behaviors designed to control and intimidate one spouse.
Using extreme cruelty as the grounds for divorce does not affect child support or alimony payments. It will only affect the disposition of assets if the wrongful depletion of marital funds is one of the behaviors listed in the complaint.
The primary reason to file for divorce based on the grounds of extreme cruelty is that you will be able to skip the 18-month separation requirement that is in place for a no-fault divorce. If you wish to file for divorce based on extreme cruelty, however, you must be able to provide proof of your allegations. This would include criminal charges related to domestic violence, as well as medical records for treatment of any injuries you have suffered.
Divorces sought on the grounds of extreme cruelty are inevitably high-conflict cases. If you are using extreme cruelty related to related domestic violence as the grounds for your divorce, you should consider contacting local domestic violence shelters or community resources for advice on how you can keep yourself and your children safe.
How Restraining Orders Affect Possession of the Marital Home
Often, New Jersey divorce attorneys advise clients not to leave the marital home until a divorce is finalized. However, in cases of domestic violence, a restraining order may grant the abused spouse exclusive possession of the marital home and force the other spouse to find different living arrangements.
If a restraining order is in place, the spouse accused of domestic violence will not be allowed in the marital home unless accompanied by a law enforcement officer for the purpose of removing personal belongings. Contact with the abused spouse will not be allowed in person, by mail, or by phone. Possession of firearms or other weapons will also be prohibited unless the spouse accused of domestic violence is required to have weapons for law enforcement or military duty.
Domestic Violence and Child Custody
Someone who is convicted of domestic violence risks losing custody and/or visitation rights following a divorce. Even if the person has not been accused of child abuse, the courts normally err on the side of caution when it comes to exposing children to violent and potentially unsafe situations.
When making decisions involving children, New Jersey courts use the “best interests” standard. This considers a number of factors, including a child’s right to a stable and safe environment, the physical and mental health of each parent, and parental commitment to a healthy co-parenting relationship.
Even if a person convicted of domestic violence doesn’t lose child custody or visitation rights, he or she may be required to take anger management classes to be allowed to continue contact with the children.
How Carl Taylor Law Can Help
Divorces involving domestic violence have many unique concerns. If you are a victim of domestic violence, representation from a skilled divorce attorney is vital. Having someone who understands the law and can advocate for your interests will help protect your rights throughout the process of ending your marriage.
Divorce and family law attorneys Carl Taylor and Lisa Browning fight for the rights of their clients while handling cases with the utmost care and discretion. Call today to schedule a private consultation.