Domestic violence is a pervasive problem throughout the United States. The State of New Jersey is no exception to this ongoing dilemma. Accordingly, the Prevention of Domestic Violence Act (“the Act”) has been enacted and is intended to serve as a shield for domestic violence victims. Unfortunately, there are times when matrimonial litigants attempt to utilize the Act as a sword, rather than a shield, in an attempt to gain an unfair advantage in parallel divorce and/or custody proceedings.

Once a Temporary Restraining Order (“TRO”) has been entered, full focus must turn to defending against the entry of a Final Restraining Order (“FRO”), both to prevent a major setback to the divorce litigation, and to avoid the major implications it would have for that individual. Since unequivocal proof rarely exists to show that what the plaintiff/victim is saying is simply not true, it helps to be able to attack the plaintiff/victim’s case from a number of different angles.

Pursuant to established statutory and case law, in order to obtain the FRO, the plaintiff/victim, must satisfy a two-pronged test. First, the plaintiff/victim must prove that one or more predicate acts, as set forth in the statute, has occurred. They include, but are not limited to, assault, harassment, or terroristic threats. Second, the plaintiff/victim must prove that a restraining order is necessary to provide protection for and to avoid future abuse to the victim.

A number of specific defenses should be considered when defending against the entry of the FRO. These include, but are not limited to, the following:

  • Denying/Defending against the Predicate Act
  • Denying/Defending against the necessity of the FRO
  • Domestic Contretemps
  • Divorce/Litigation Planning

Predicate Act

The most common predicate act in TRO Complaints is harassment. Accordingly, this will be the predicate act that is focused on herein. Simply put, harassment is defined as when:

A person, with purpose to harass another, he:

(1) Communicates with that person either anonymously, at extremely inconvenient hours, or in offensively coarse language;

(2) Strikes, kicks, shoves, or offensively touches that person; or

(3) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy that person. (Emphasis added.)

In order to commit harassment, the actor MUST act with purpose to harass another. Oftentimes the simplest way to defend against the claim of harassment is to provide the Court with an ulterior motive behind the Defendant’s words/actions. If there is no purpose, there is no predicate act.

Necessity of Final Restraining Order

In addition to the predicate act, the plaintiff/victim must also prove: (1) that he/she is fearful of the Defendant; and (2) that there exists opportunity for domestic violence to continue/occur again without the entry of the FRO. The alleged fear of the plaintiff/victim can oftentimes be countered by effective cross examination and/or by reviewing the evidence presented in their case in chief. For example, if the plaintiff/victim provides a video/audio recording, attempts should be made to show that the recording proves that he/she was never fearful of the Defendant because he/she remained calm, refused to leave, escalated the situation, or otherwise failed to demonstrate that the Defendant’s words or actions had any impact upon them.

Domestic/Marital Contretemps

Domestic/Marital Contretemps is a term of art used to describe the ordinary arguments that occur between spouses/partners. This is often a successful defense to the claim of domestic violence, as the plaintiff/victim is simply trying to mislabel an otherwise routine argument as domestic violence. The Courts must strive to remain vigilant in separating domestic contretemps from domestic violence as the lines can sometimes blur, but the outcome for each should remain distinguished. There is a plethora of established case law with regards to this defense. Accordingly, this is vital defense to consider when preparing the Defendant’s case.

Divorce Planning

As noted above, the Act can often be misused, despite its vital intended purpose. Accordingly, it is not uncommon to see divorce litigants file for TROs against their spouse/partner, in order to gain an advantage in various parallel proceedings. This is especially true at the onset of litigation, as it can be seen by a litigant as a way to (a) remove their spouse/partner from the home, (b) remove their spouse/partner from custody of their child(ren), and/or (c) create an unfair first impression of their spouse/partner before the Court. Important things to consider include, but are not limited to, (1) the timing of filing of the Divorce Complaint, (2) the timing of filing of any TRO/Amended TRO Complaints, (3) the timing of the retention of counsel, (4) words/actions of the plaintiff/victim, and (5) language in the plaintiff/victim’s pleadings.

For example, if the plaintiff/victim retains counsel, files a Complaint for Divorce that includes claims for sole or shared custody, and THEN files a TRO, his/her intentions for doing so could and should be questioned as improper. It is also important to consider the words/actions of the plaintiff/victim. For example, who did the plaintiff/victim contact after any alleged incident – was it law enforcement and/or medical attention or was it the advice of counsel? What positions as to custody and/or parenting time did the plaintiff/victim take after the entry of the TRO? The key to this specific defense is taking the plaintiff/victim’s alleged motivations and turning them around on him/her by providing the Court with their true, ulterior motive.

Recently, I represented a client in a four-day trial in a domestic violence matter and was able to secure a successful outcome for that client. It is essential to retain a skilled attorney when matters of domestic violence are at issue.