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Divorce and orders of protection

It is sometimes necessary for a married person to file restraining orders against his or her spouse prior to, during, or after a divorce.

Santo V. Artusa Jr. | Jan 26, 2015

Top 5 Tips to a Final Restraining Order Hearing in Hudson County, New Jersey Superior Court

The Judge is your Jury and having experience before that judge is very important Every judge has their own style as to how they decide cases and how cases flow in their courts. Certain judges follow the letter of the law to the T, others allow for slight deviations to try and find out the full facts. In Hudson County, as of now, there are three main domestic violence judges. Judge Mark Baber, Judge Breland and Judge Maureen Mantineo. Judge Baber and Judge Mantineo have over twenty years of experience. Judge Breland has less than one year of experience. In a domestic violence case in family court, the judge is your jury. Do you have proof of the incident(s)? Witnesses? Evidence, evidence and more evidence. Pictures of your injuries, copies of your text messages, emails of abuse and so forth are very important to bring to court. Sometimes your word alone will not win your case, providing evidence to the court increases your odds. Make sure the temporary restraining order is accurate. Review your restraining order so that the facts as you recall them are correct and that all prior acts of domestic violence are included on the paperwork or you risk it not being allowed in court when you testify. What else can I seek aside from a final restraining order? If you obtain a final restraining order, you can seek custody of your children, child support, spousal support, attorneys fees, punitive damages, rental payments, sole possession to the marital or relationship residence, compensatory damages, and of course the prevention of the defendant to contacting you. What incidents can I use on the temporary restraining order for the prior history part? All domestic violence incidents between you and the defendant regardless if it has been reported or not. Again the more specific you are the better chance you have at obtaining a final restraining order and for the Defendant, the less precise the victim may be while testifying and hearing from the defendant the whole story and not just certain points, the better chance you have to dismiss the TRO-temporary restraining order in New Jersey. How much does it cost to retain a lawyer for a restraining order in Hudson County, NJ. I believe the range for an experienced attorney's retainer is $2500-$7500 or more depending on the nature of the case. The reason the range is so great and could be a little lower or much higher is because the number of times the attorney needs to go to court, the amount of preparation time and so forth. An experienced attorney will prepare you for your case.

Vanya Hession | Oct 21, 2014

Elements of a VAWA Self-Petition

An immigrant must meet the following conditions: Part I 1. He/she was legally married to the abusive United States citizen or legal permanent resident spouse. Note, being engaged to a United States citizen or currently residing in the United States on a K visa does not apply. 2. He/she has been battered by, or has been the subject of extreme cruelty, perpetrated by the United States citizen or lawful permanent resident during the marriage. This abuse includes, but is not limited to the following acts: being the victim of any act or threatened act of violence, including: forceful detention, sexual abuse or exploitation, rape, and/or molestation. Mental cruelty involves repeated acts of non-physical violence against the victim. Examples can include: financial exploitation, controlling behavior (i.e., not allowing the victim to speak in their native language, exercise his/her religious beliefs, visit family/friends, and/or threatening him/her with deportation), degrading behavior (i.e., verbal abuse or insulting the victim based on their cultural differences), and acts of deception; 3. He/she has resided in the United States with their United States citizen or lawful permanent resident spouse (regardless of the length of time they actually lived together). Note, that even brief residence together (such as one week) may be sufficient to meet this element; An immigrant must meet the following conditions: Part II 4. He/she is currently residing in the United States. Note, the applicant must be currently residing in the United States; 5. He/she entered into the marriage to the United States citizen or lawful permanent resident in good faith. Note, it is the burden of the applicant to prove to the USCIS that the marriage was entered in good faith and was bona fide at its inception; 6. He/she is a person of good moral character. Note, a police clearance certificate must be provided. It is recommended that the applicant provide affidavits from employers, friends, religious organization leaders, etc. attesting to the applicant's good moral character; and 7. He/she is a person whose deportation would result in extreme hardship to himself/herself. Additional comments In addition, if the immigrant is already divorced from his or her abusive spouse, the petition must be filed no later than two (2) years following the date that the divorce decree was finalized. If the divorce was already finalized at the time the VAWA self-petition is filed, the immigrant must further establish that the divorce was a direct result of the abuse suffered. VAWA applicants should also note that if they re-marry while their petition is pending with the USCIS, their petition will be invalidated. It is worth noting that USCIS may consider any credible evidence relevant to the VAWA petition, such as reports and affidavits by the self-petitioner, his/her friends and family, orders of protection, and evidence that the abused victim sought safe-haven; however, the determination as to what documentation is credible and the weight to be given to that evidence is left within the sole discretion of the Service. If you are interested in pursuing a VAWA petition, please contact our firm for additional information.

Teresa Ann Mcadams | Jun 6, 2014

How to use the court system to protect yourself from another person in Illinois

Orders of Protection This type of order is appropriate when the other person has been in a romantic relationship with you, has resided with you, or is a family member. People that you have not dated, not married, not co-habitated with, or whom you are not related to do not meet the standards required to obtain an Order of Protection. You would seek this remedy if you have experienced violence with the other party, have been harassed, stalked or seriously threatened. You must have a reasonable belief that the order is necessary to protect you from this person. Once you have an order of protection and it is served upon the other party, the police may immediately arrest the person and charge him or her with violation of an order or protection. Restraining Orders Restraining orders are commonly used in causes of action to prevent a person from physical abuse, stalking and harassing the petitioner, or disposing of property or assets. The most important difference is that a violation is addressed in civil court, not criminal court. Meaning, the police can not arrest a person for violating a restraining order. The petitioner's remedy is to file a Petition For Rule To Show Cause seeking that the violating party be held in contempt of court. This is a lengthy process that can take months to litigate. It is more appropriate to protect property and assets, but not particularly effective if you fear for your life or safety. Stalking No Contact Orders This type of order is appropriate when there is a stalking, safety or harassment issue with a person that you have not dated, married, lived with or are not related to by blood or marriage. Similar to an order of protection, the other party can be immediately arrested and charged after being served with the order if he or she violates the directives of the Stalking No Contact Order.

Mark Saul Schondorf | Feb 5, 2014

Emergency Orders of Protection (Restraining Orders) Under the Illinois Domestic Violence Act

Who is Covered by Emergency Orders of Protection (Restraining Orders)? Orders of Protection and Emergency Orders of Protection are governed by the Illinois Domestic Violence Act of 1986 ("IDVA"; see 750 ILCS 60/101 et. seq.). Under the IDVA, any person, minor, or person with disabilities who has been abused by a household or family member, or an adult on their behalf, can seek an Order Of Protection on an emergency basis. "Family or Household Member" includes not only spouses, former spouses, and other persons related by blood or marriage, but also people who share a dwelling, who have a child in common, share a blood relationship through a child, are dating or engaged, or are in a disabled/caregiver relationship. Additionally, additional household or family members can be named as protected parties in the Emergency Order of Protection. What Can You Seek Protection Against? An Emergency Order of Protection prevents "abuse", which includes physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation or neglect (but does not include reasonable direction of a child by a parent.) "Harassment" is construed broadly as conduct that would cause a reasonable person emotional distress, and can include (but is not limited to) calling the victim names, yelling at or threatening the victim, using angry expressions or gestures with the victim, humiliating the victim either in public or private, accusing the victim of infidelity, breaking or throwing the victim's property, constantly telephoning or sending letters and cards to the victim, causing a disruption at the victims' school or work, or threatening to commit suicide if the victim ever leaves the relationship. What Is The Process of Obtaining an Emergency Order of Protection? The first step is to file a Petition for an Emergency Order of Protection, which is processed on an expedited emergency basis. They are filed and immediately presented to the Judge who issues (or denies) the Petition based on sworn affidavits of the petitioner and any witnesses. It is an ex parte proceeding, which means that the respondent (the alleged abuser) is not present and/or not given notice. If the Judge grants the Petition, the Emergency Order of Protection is issued, which then must be served on the alleged abuser to become effective. Emergency Orders of Protection are valid for 14 to 21 days, after which time the parties would return for a hearing. At that time, the alleged abuser (and perhaps his/her lawyer) would then have an opportunity to present evidence or testimony opposing the Petition. The judge can then let the deny the Petition and vacate the Emergency Order, or grant the Petition and issue a plenary Order of Protection - valid for up to 2 years. What Happens If There Is A Violation of the Order of Protection? If the respondent/alleged abuser violates an Order of Protection, it can be treated in one of a few ways: a criminal offense, a civil tort, or a contempt of court. If the manner in which the order of protection was violated was an independent crime (e.g., assault rather than telephone calls), the violation is an independent crime in and of itself and must be prosecuted by a criminal court even if the Order of Protection was issued by a civil court. If an alleged abuser violates the Order of Protection, he can be arrested and taken into custody on that basis.

Patrick Mathisen Brooks | Aug 22, 2013

Steps to File an Uncontested Divorce in Tennessee (BASICS 101)

Complaint for Divorce This document identifies the parties, state the grounds for divorce and asks the court to grant the divorce. After filing there is a mandatory 60 day waiting period if no children are involved and 90 days if there are children. If you cannot afford the filing fee you need to file an affidavit of indigency. A confidential statistical data sheet is also required to be attached which outlines the following: the full names of the parties, social security numbers, date of separation, information about any children, where the parties are employed, and the number of previous marriages. In addition one needs to file a Divorce Certificate form. The complaint is filed with a summons , a copy is served upon the other spouse and they have 30 days to answer to the complaint. The Defendant spouse can either admit or deny the allegations and information contained within. If they do not answer within 30 days you may file a motion for default judgment and an accompanying order for default judgment Marital Dissolution Agreement This document follows the format of the complaint and the final decree and outlines 1) property awarded to husband and wife 2) debts to be paid by husband and wife 3) Alimony (if any) 4) Pension or retirement accounts 5) any other claims such as prenuptial, post nuptial, separation agreement, automobile accidents, etc. Note: The Marital Dissolution Agreement cannot be more than 180 days old when the judge signs the Final Decree Final Decree This document outlines many of the same topics covered in the Marital Dissolution Agreement except for 1) Dissolution of Marriage 2) Child Support and 3) Name Changes 4) Orders of Protection and 5) Fees and costs. Please note if there is one or more dependent children involved in the divorce it will also be necessary to agree on the terms on a Permanent Parenting Plan (PPP), a possible Wage Assignment (if this is necessary to receive spousal or child support), Qualified Domestic Relations Order (if one spouse is seeking pension benefits from the other), Title IV-D info (if one parent of a child is receiving assistance from the State of Tennessee).

Kelly G. Lambert III | Jul 18, 2013

5 THINGS THAT CAN COST YOU DEARLY IN A DIVORCE AFTER YOU HAVE BEEN SUED

Although the marriage is undoubtedly over, the Complaint for divorce you just received has taken you by surprise. This is the norm. Unfortunately it is also the norm that the filing spouse is way ahead of you mentally and strategically. He or she has been planning this for some time. By the time you get the Complaint your joint account is wiped out, the spouse is gone and so are the kids along with a few prized possessions. So what do you do and what don’t you do now? IMMEDIATELY secure any and all finances, if its not already too late. Do it before you even call a lawyer.Open new accounts in your name only. Take money out of the joint account, cancel all credit cards and debit cards. Get copies of all financial records, i.e., bank statements, account balances, retirement account balances, loan balances, paystubs, tax returns, etc. Protect your money and assets. In short, know and have proof of what, where and how much. DO NOT assume that the divorce will be “friendly" and uncontested. If that were the case the complaint would not have bolted out of the blue. The head-in-the-sand, my-life-is-over approach is a prescription for disaster. You can bet your children, child support, custody, house, spousal support and disproportionate division of your marital assets and debt that your spouse is praying for you to take this approach. Don’t do it. In 26 years, I have seen many cases start out this way but only a handful end this way. AVOID CONFRONTATION. Confrontation WILL be used against you for custody purposes since domestic violence is a custody factor. Confrontation may also result in a Personal Protection Order being entered against you. It may then result in your incarceration. DO NOT ABANDON the home and or children, even temporarily, as it may result in the Court determining that you have de facto recognized that the children’s best interest is to reside with your spouse. After all, you would not have left the children, even to find a new home and settle in, if your spouse is an unfit parent. Do not leave unless absolutely necessary to protect yourself. If that proves to be necessary, take the kids with you and immediately seek legal counsel. Gather Evidence to prove your spouse’s fault for the divorce, i.e., an affair, drugs, alcoholism, abuse, etc. and to acquire custody and support. Typical sources of evidence, include, but is not limited to, those listed above in paragraph 1 and Facebook, police reports, counseling and medical records, school records, telephone records, e-mails, text messages, letters and notes, receipts, photographs, and Child Protective Services Reports, etc. When thinking about evidence, think about how to prove the 12 Custody Factors that the Court will rely upon to determine who should be awarded custody of the minor children. These 12 Factors, and the thousands of cases that interpret how to apply the 12 Factors are the only issues that the Court will consider in a custody dispute. If you have children and are in a divorce, get the 12 Factors now, along with valuable insight into how the 12 Factors will be applied to your case before it is too late. Contact The Law Offices of Kelly G Lambert III, PC, at 616-732-8888 or [email protected] for your free copy today, call for a free consultation regarding your divorce case!

Anne Peyton Bryant | Jul 13, 2013

Sylvie Cachay: A Beautiful Life Cut Short by Toxic LOve

Domestic Violence comes in all shapes and forms. Sometimes an order of protection is a necessary step to take in order to safely turn the corner and make the important decision to remove from a toxic, dangerous, and volatile person from your life. There is nothing to be ashamed of in having to take this step to protect your safety and well- being. Tragically, in the case of Sylvie Cachay, a toxic love affair with Nicholas Brooks that began in the summer of 2010 would end with her on December 9, 2010 by her lover’s very own hands. The cause of Sylvie’s death was manual strangulation and forcible drowning. As a family law and divorce attorney who deals with a broad spectrum of domestic violence issues including obtaining orders of protection for clients on a near daily basis, the tragic story of Sylvie Cachay sends chills up my spine. Sylvie Cachay, 33, was a rising star in the world of swimsuit design. Her bathing suits had been featured in magazines like Sports Illustrated, and stores like Bergdorf Goodman. At approximately 3am on December 8, 2010, Sylvie Cachay was found submerged face up in a luxurious bathtub located in the middle of Room 20 at New York City’s exclusive SoHo House. The bathtub water was running full blast and her small dog barking furiously nearby at the door. Her then boyfriend was Nicholas Brooks, 27, the son of Douglas Brooks, who is famous for having won an Oscar for the song “You Light Up My Life". On July 11, 2013 a jury found him guilty of Intentional Murder. A quiet “yes!" was rang throughout the courtroom, followed by tears from nearly everyone present–in particular two jurors. During the 20 hours that the jury deliberated, 29 notes had been sent out to the judge, with videos replayed and hours of testimony read. During the trial which took place in New York Supreme Court (June/July 2013) prosecutors painted Nicolas Brooks as a lazy, unemployed pot headwho used Sylvie for money while he pursued escorts–his own trust fund having been cut off by his father. Without question, there were intense emotions in the relationship with Sylive writing to Nicholas at one point, “I love you so much it hurts". Days later her message to him read; " Fuck You “ Brooks’ attorney argued during the trial that Cachay, who was 33, drowned accidentally after she passed out from an overdose of prescription pills. Only that argument was difficult to make stick when the medical examiner and Sylvie’s doctor testified that she had been on the same prescriptions for years and only therapeutic levels were found in her body at the time of death. Evidence taken from Sylvie’s computer showed that in the days, and even the hours before she died, there were several hits to escort sites on her computer: -Dec. 1, 2010 – 2 hits at 6:50 p.m. -Dec. 8, 2010 – 2 hits at 6:40 p.m. -Dec. 8 2010 – 1 hit at 8:40 p.m. A hand-written letter that was presented as evidence in court showed Brooks’ apologizing to Sylvie for hiring prostitutes in the “past." In part, it read: “Dear Sylvie, I am so sorry that I showed you my past on the e-mail the other night. I wasn’t thinking how that would affect you. I hope you can believe me when I say that you are so smart, beautiful and funny, and I don’t think about anyone else but you." Dozens of text messages that Sylvie sent to friends were presented in court: Text from Sylvie Cachay to friend – Nov. 24, 2010 “I know I’m doing the right thing … [but it's] hard when I need and want to take care of him. I don’t even think he loved me." Text from Sylvie Cachay to friend – Nov. 25, 2010 “I’m in a sich … letting him come over … so mad at myself … I started crying." Those were just two of many text messages that Sylvie sent to one of her very best friends in the days and months before their relationship ended for good on December 9, 2010. Hindsight is always 20/20 and breakups are never easy. As I sat through the trial of Nicholas Brooks however, it was hard for me not to think: Had Sylvie Cachay shared with me the details of her relationship, I would have urged her to come with me to court to obtain an order of protection. There was testimony that Brooks had an explosive temper, that he had threatened Sylvie’s life, refused to leave her apartment, refused to return her house keys, that he called her insulting names, that he used her credit cards without her permission, … And the list goes on. Sylvie discussed with her friends changing the locks to her apartment just a few days before her death…. Sometimes an order of protection is a necessary step to take in order to safely turn the corner and make the important decision to remove from a toxic, dangerous, and volatile person from your life. There is nothing to be ashamed of in having to take this step to protect your safety and well- being.

Brad Michael Micklin | Jun 24, 2013

How Do I Get a Restraining Order in New Jersey

How Do I Get a Restraining Order in New Jersey When you are involved in a marital relationship or a relationship comprised of unmarried parents, there are legal tools that can be used to protect you from the cycle of violence. Many domestic abuse victims feel isolated and hopeless after being victimized by acts of domestic abuse, which include spousal rape, domestic battery, assault and other forms of family violence. However, acts of violence against a spouse or co-parent occur in households involving people from all walks of life, and all social, economic and ethnic backgrounds. Restraining orders along with other remedies available to spouses and co-parents in family court offer alternatives to violence in the form of protection from your abuser and financial support. The initial step in seeking court ordered relief from domestic violence is to obtain a NJ Temporary Restraining Order. This form of emergency relief can be obtained at your local police station or the family law division of your county Superior Court. If you are facing an emergency on a Saturday or Sunday, you should apply for a temporary restraining order at the police department. An experienced NJ domestic violence attorney can assist you with this emergency paperwork, but you can also wait until you have the emergency order and then retain a New Jersey family law attorney to help you prepare for the hearing on a final restraining order. If you must make an emergency request outside of court hours through the police department that is denied by the judge, you can reapply directly to the court during court operating hours. When preparing a request for a temporary restraining order and/or final restraining order, it is important to meticulously document the incidents of domestic violence to which you have been subjected. The paperwork should be detailed and specific regarding the precise acts of violence, threats to cause harm and other forms of abuse to which you have been subjected rather than just offering generalities. If your temporary restraining order is granted, the judge may impose a number of restrictions that may include: An injunction that prohibits your abuser from coming within a certain distance from your person A stay away order that prevents your abuser from contacting you at home, work, school other location An order prohibiting contact with other protected parties, which may include your children Prohibition on contacting the victim by mail, email, text message, telephone or any other form of communication Our New Jersey divorce lawyers at the Micklin Law Group understand that many people feel trapped especially if they have been victims of a pattern of abuse over a prolonged period. Many who have suffered physical abuse, intimidation and threats of harm at the hands of a perpetrator of domestic violence may feel that there are no viable alternatives to violence because of concerns about child custody or financial concerns. However, a NJ family law judge also may grant temporary custody orders and temporary financial support until it can be formally handled in your divorce action. If the temporary restraining orders are granted, the court will schedule a final restraining order hearing. Typically, this hearing will be scheduled approximately ten days following the hearing on temporary restraining orders. At the hearing on the final restraining orders, the court will consider formal court testimony by you, your abuser and other relevant witnesses. The prospect of testifying under oath in a formal hearing against your abuser can be extremely daunting, but our experienced New Jersey family law attorneys can help prepare you for the hearing and represent you in front of the New Jersey family law judge. If you have questions regarding domestic violence restraining orders in New Jersey, our dedicated New Jersey domestic violence injunction lawyers at The Micklin Law Group can answer your questions and explain your options. Our experienced New Jersey family law firm offers a free consultation in our conveniently located Nutley offices. We invite you to call us at (973) 562-0100 or contact us online by completing our confidential online form.

Joseph T. Barberi | Feb 26, 2013

5 Things That Can Sink Your Divorce Case

Not Controlling Your Emotions Emotions run high for people going through divorce and it is important to keep them in check. You should never allow your temper to cause you to physically harm your spouse or your children. Not only is a physical injury to your spouse or children a criminal matter, possibly causing you to face public prosecution for your actions, but physical violence can also have profound ramifications on your divorce case. Domestic violence and emotional abuse can serve as a basis for a Personal Protection Order being entered by the court (commonly known as a PPO). Having a PPO entered against a spouse can have a major impact on who stays or leaves the marital home and on who obtains primary custody of the parties' minor children. It can also be a factor as to whether spousal support is awarded and whether a 50/50 property division is ordered. Moving Out of the Marital Home If you want to pursue primary physical custody of your children, do not move out of the marital home without taking the children with you. "Leaving the home" where your children have lived for a significant period of time, without taking the children with you, will often be viewed as a form of abandonment. If there is physical violence in the home, either leave with the children or seek sound legal advice from an experienced family law attorney. You may be able to obtain an ex parte order granting you exclusive use of the marital home or be referred to a shelter where you and your children can reside temporarily. The underlying facts that support your request for exclusive use of the marital home, if such an order is to be granted ex parte, need to be compelling and present a picture of the potential physical harm to you or your children that could occur should the ex parte order not be granted. Starting a Relationship with Someone Else Too Soon If you have become romantically involved with another person, don't bring him or her "into the marriage" before filing for divorce. Additionally, if there are minor children involved, don't introduce the new person to your children until a lengthy time has elapsed after the divorce process has started. Often, the marriage has "broken down" long before one party actually files for divorce. This delay in time is often when spouses, feeling alone in their marriage, find themselves attracted to someone else "who listens to them" or "who understands," and things happen. When they do, don't make the mistake of waiting too long to file for divorce, otherwise your "affair' may be used against you for causing the breakdown of the marriage when property and debt division and alimony issues arise. If child custody is litigated, the court will hold it against the spouse who makes the mistake of introducing the boyfriend or girlfriend to the children too early in the divorce process. Disparaging the Other Parent Don't tell your children how bad their father or mother is, no matter what their father or mother did to you. All children typically want to love both parents; even though what your spouse did may have been wrong, don't be the messenger of such information. When it comes to child custody disputes, Michigan's best interest factor (j), "the willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents," can be an important factor. The factor will be weighed against a parent who "bashes" the other parent to their children. As stated, it is emotionally harmful for children to hear about the poor choices of their fathers and mothers and the worst way for them to hear about these matters is one parent bad-mouthing the other. Resist the temptation to "spill the beans" to the children. Airing Your Dirty Laundry on Social Media Sites Do not post anything on social media websites about yourself or your spouse. Also, do not text anything to your spouse or one of your spouse's friends that you do not wish to be introduced against you in your divorce case as "Exhibit 1." In our social digital word, we freely exchange information about ourselves, our friends, our spouses, or our new romances. Many spouses who are upset with their partners will save these "comments" for use in court. Such postings and texts will come back to haunt the offending party and will become potential exhibits to be introduced at trial. The best policy is to never post, text, or e-mail anything damaging, because it could come back to hurt you if your case is litigated in court.

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