Divorces involving domestic violence may warrant the entry of a restraining order. While restraining orders play an important role in protecting families from harm, they come with additional considerations for the divorce process—for both parties.
But while a restraining order can change the nature of some of the decisions and options during divorce negotiations, it is possible to craft a satisfactory divorce settlement taking safety concerns into consideration. A knowledgeable family law attorney can walk you through all of the options available to you so your divorce process can be as smooth, safe, and low-stress as possible under the circumstances.
What type of restraining order is involved?
Two types of protective orders may be implemented during (or sometimes immediately before) divorce proceedings: Temporary Restraining Orders (TROs) and Final Restraining Orders (FROs).
Temporary Restraining Orders, when granted, provide immediate protection in the event that one spouse commits an act of domestic violence. A TRO may require that the alleged abuser:
- Not contact the victim whatsoever OR only communicate with the victim in limited circumstances (e.g. via writing about a child in common)
- Leave the shared residence
- Avoid the victim’s workplace, school, or other frequented locations
- Immediately cease abusive behaviors, such as stalking or threatening
- Pay support for the victim and any children in common, such as spousal support or child support
- Attend counseling or psychological evaluations
- Relinquish weapons, such as firearms
- Have limited, supervised, or no visitation with children protected by the order (or shared with an individual protected by the order)
A TRO may also grant the victim temporary custody of any children and outline any parenting time between the child and the parent against whom the TRO is issued until the situation has been thoroughly investigated. Terms vary on a case-by-case basis and will last until a Final Restraining Order hearing can be held—ideally within ten days of issuing a TRO.
Note: if you have been accused of domestic violence, you must follow the conditions of the restraining order—even if you believe the accusation was wrong. Any alleged violation of the terms of the restraining order can have serious consequences including criminal repercussions. At the hearing, a judge will consider evidence from both spouses to determine whether a permanent Final Restraining Order is necessary.
How an order of protection might be restrictive during divorce proceedings
Restraining orders limit communication between the parties involved. Yet communication is essential for divorcing spouses to address financial and custody concerns effectively. As a result, restraining orders may impact how spouses hold discussions during divorce proceedings.
When contact between spouses gives rise to a safety concern, attorneys (and mediators) can help facilitate negotiations for the division of assets, parenting time, and other issues. Traditional in-person mediation may not be an option, but shuttle diplomacy may be.
Using this mediation method, the two parties aren’t in the same room. (And thanks to the popularity of Zoom mediation, they may not even need to be in the same building.) Instead of speaking to each other directly, a trained mediator travels between both parties to negotiate on each person’s behalf.
Restraining orders and child custody
Based on existing case law in New Jersey, Temporary Restraining Orders often award the victim temporary custody of the children until the Final Restraining Order hearing, where more information can be ascertained or until a motion is heard as to what, if any, contact between the parent accused of domestic violence and the children is heard by the court. This serves to protect children from what may be unsafe situations, especially if they were present during the alleged acts of domestic violence.
The court must consider allegations (or eventual determinations if found) of domestic violence while deciding custody issues, which means that the spouse accused of perpetrating violence doesn’t automatically get stripped of child custody or parenting time on a permanent basis. The court will consider many factors to determine whether spending time with the accused parent is in the child’s best interest, including:
- Whether violent acts were targeted at the other parent, the children, or both
- What kind of injuries, if any, were inflicted on the other parent (or the children)
- If there is a pattern of domestic violence
- The testimony of police officers and other parties involved
- Whether a criminal case is pending
- Whether the accused parent has a violent criminal record
Because research shows children benefit from regular contact with both parents, the court may opt to order supervised parenting time if the children were subjected to acts of domestic violence or if the factors suggest that it may be unsafe for the children to have contact without precautions. In the event that a Final Restraining Order is issued, an intermediary may be appointed to schedule and facilitate parenting time as needed.
That being said, the court weighs numerous factors when making final determinations about custody and parenting time. These factors are considered together to identify what is in the best interest of the child—and one factor doesn’t necessarily have more weight than the other factors without mitigating facts.
What happens when divorce proceedings have concluded?
A restraining order doesn’t end just because a settlement has been reached. Temporary Restraining Orders remain active until the Final Restraining Order hearing, which takes approximately ten days. After that point, a Final Restraining Order will be issued or the matter will be dismissed.
Final Restraining Orders, on the other hand, are permanent and will continue to impact the interactions between ex-spouses until:
- The filing spouse voluntarily requests that the order be dismissed OR
- The restrained spouse proves to the court that there is no longer a need for the order
Even if both individuals agree that the order is unnecessary, unless the victim dismisses the Restraining Order voluntarily, the final decision rests with the court if the accused has to make an application to dissolve the restraints. As long as the restraining order is in place, both parties need to comply with its terms.
Schedule your strategy session
At Jacobs Berger, we represent clients seeking protection through domestic violence restraining orders, as well as defending themselves against false accusations of domestic violence. We’re also deeply familiar with the creative solutions available to negotiate a divorce settlement while a restraining order is in place.
Make an appointment to coordinate your strategy session with our team.