How Does a Restraining Order or an Order of Protection Affect a Divorce Case?

Divorce is full of difficult conversations and decisions, but when domestic violence is part of the picture, these conversations and decisions can be even harder. Restraining orders layer additional stress and uncertainty onto the necessary legal processes of divorce. 

A restraining order may have unexpected consequences for custody arrangements, property division, spousal support, and even how you choose to handle your divorce. These impacts last far beyond the immediate legal process and can influence your entire future. 

In these moments, one of the best things you can do for yourself and your family is to gain a clear understanding of restraining orders and how they work. 

Overview of restraining orders in New Jersey

In New Jersey, restraining orders are legal tools designed to protect individuals from domestic violence. They can be sought by those in various types of relationships, including marriage, cohabitation, dating, or shared parenthood. 

There are two types of protective orders designed to offer protection from domestic violence:

• A Temporary Restraining Order (TRO) is issued immediately to provide protection that lasts until you arrange for a court hearing for a Final Restraining Order. TROs may be issued based on a plaintiff’s sworn testimony alone. 
• A Final Restraining Order (FRO) is granted after a court hearing, offering permanent protection unless a court decides to modify or vacate it. Unlike TROs, FROs require full legal proceedings where both sides present evidence, testimony, and witnesses. 

Although FROs are meant to be permanent, they can be modified or terminated at any point upon request by the plaintiff or the defendant. The defendant is also entitled to appeal the outcome, but they must have valid grounds to do so in order to succeed.

What are the grounds for a restraining order in New Jersey

There are many different reasons someone might pursue a protective order in New Jersey. The list includes:

• Assault 
• Criminal restraint 
• Stalking 
• Sexual assault and criminal sexual contact
• Harassment and cyber harassment
• Lewdness 
• Kidnapping and false imprisonment
• Robbery 
• Burglary 
• Criminal mischief 
• Contempt of a restraining order
• Homicide

How a restraining order might be restrictive during divorce proceedings

When a restraining order is obtained before or during divorce proceedings, it can introduce several restrictive elements that significantly impact the process. These restrictions can include the following five issues.

Access to minor children

A restraining order, especially an FRO, may limit or restrict a parent’s access to their children, potentially leading to supervised visitation or loss of custody as courts weigh children’s safety against parental rights.

Communication barriers

Restraining orders can limit communication between spouses, complicating coordination on parenting and divorce-related discussions. It may be necessary in these situations to exchange information via your attorneys to ensure safety is maintained and conditions of the TRO or FRO are upheld. 

Access to assets and property

The restrained party might face restrictions on accessing marital assets, affecting their financial stability and ability to manage living expenses and legal costs.

Restrictions also often include barring the restrained party from the family home, which impacts living arrangements and property division negotiations.

Court appearances and mediation

A restraining order can add a layer of complexity to court appearances, potentially requiring special arrangements like virtual appearances. 

Mediation may also require a deeper level of consideration. Depending on the facts of each domestic violence case, mediation may not provide a suitable level of safety for survivors. It may also be more difficult to facilitate productive, solution-oriented conversations. (That being said, each situation is different; some survivors may wish to avoid the stress and expense of a trial.)

Legal perceptions

The existence of a restraining order may influence how the court views the parties, potentially affecting custody, property division, and child support outcomes.

Handling a divorce under the shadow of a restraining order demands strategic legal guidance. Working with an attorney knowledgeable about the implications of a protection order for the divorce process is crucial for navigating these challenges effectively.

Restraining orders and child custody

Restraining orders significantly impact child custody decisions during divorce proceedings, with the court’s primary focus on ensuring the children’s safety and well-being. 

Here are the key points families should keep in mind if a restraining order has been issued:

• Safety first: Courts prioritize children’s safety, which may lead to the non-restrained parent being favored for custody if the restraining order stems from concerns of violence or abuse.
• Supervised visitation: If there’s a risk to children’s safety, the parent under the restraining order may be allowed only supervised visitation.
• Legal custody impact: A restraining order can influence decisions on legal custody, potentially limiting the restrained parent’s decision-making authority regarding the child’s welfare.
• Evidence and best interests: The court considers the nature of allegations, evidence supporting the restraining order, and overall what serves the children’s best interests in making custody decisions.

Effective legal representation and exploring alternative dispute resolution methods can be crucial for navigating these complex issues, ensuring both parents’ rights and children’s safety are adequately protected.

Obtaining a restraining order during a divorce

If you’re in a situation where you feel threatened or endangered by your spouse, knowing how to secure a restraining order can be crucial. Below is a simplified guide to the process, but please remember that if you are in need of emergency help, call 911 or visit your local police department. Your safety and that of your family is the most important thing.

1. Filing a petition: You start by filing a petition either through your local police department who will contact a municipal court judge to determine your petition or through the Superior Court of New Jersey. This document should detail why you need protection, including any instances of violence, threats, or harassment.
2. Temporary Restraining Order: The court will issue a temporary restraining order immediately if they believe there’s an immediate threat. This TRO provides protection until your full court hearing, which usually takes place within a couple of weeks.
3. Court hearing: You’ll need to attend a court hearing where both you and your spouse can present your sides of the story. It’s important to bring any evidence or witnesses that support your case for needing protection.
4. Permanent Restraining Order: If the judge decides that a restraining order is necessary for your safety, they may issue a permanent restraining order, which offers long-term protection. The specifics, like duration and conditions, depend on your situation.

Although it’s possible to go through this process on your own, having an experienced domestic violence lawyer is important. An attorney will help you understand the legal process as it pertains to your situation and protect your rights and safety during this time. 

Consult with an experienced domestic violence attorney 

Divorce is difficult in and of itself, but the added complexity of navigating orders of protection during a divorce can be overwhelming. It’s important to take proactive steps to protect your rights and safety throughout the process. 

If you’re considering a restraining order or are facing one, the compassionate, experienced family law attorneys at Dughi, Hewit & Domalewski can help you understand your options and identify the right legal path forward for you and your family. Contact us for a consultation today.