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AVOIDING DIVORCE WARS – SHOULD SOME SORT OF NON-DOMESTIC VIOLENCE RESTRAINING ORDERS BE REVISITED?

Legislation has recently been introduced in the New Jersey Legislature that would allow for the issuance of Restraining Orders in Non-Domestic Violence situations. While its passage and/or application to family law matters is problematic, this led me to think about a question frequently posed by many of my divorce clients – short of someone being found guilty of committing an act of Domestic Violence, “Is there any way of forcing my (bleep) spouse out of the marital residence until such time we are divorced?”. Most of the time my answer would be, “Unfortunately, no” . Would this proposed legislation change that answer, or is it time for the courts to revisit how they address these situations?

It goes without saying that for many going through a divorce it is a stressful and emotional time. While some break-ups are amicable, for most, that each spouse has negative feelings towards the other, would be an understatement. There is no love lost between the parties. Often, particularly at the outset of a divorce, those parties continue to live under the same roof. Some are able to tolerate being around the other. For others, it is like walking on eggshells, being in a constant state of unpleasantness and engaging in recurring skirmishes. Then there are those whose feelings for the other boil-over into utter hatred and who seem to relish being in a constant state of war with the other. However, often this behavior falls short of what would constitute Domestic Violence, affording possible relief under N.J.S.A. 2C:25-17 et. seq. If a client presents being in a non-domestic violence situation, the first thought may be “Why doesn’t that person simply move out?”. Perhaps, if the parties had no children, were each gainfully employed in well-paying jobs, and the spouse thinking about leaving had no strong desire of wanting to retain the marital residence, simply moving out may be a reasonable option. Other than not wanting to give the other spouse the satisfaction, or wanting to keep the pressure on to facilitate a resolution, often the emotional benefits of moving out outweigh any perceived benefits of remaining. For many, moving out is not financially feasible, even if there are no children involved. Moving out necessarily creates a whole new set of living expenses which the marital finances may not afford at that juncture. If one spouse earns considerably more than the other, support implications come into play. Often, the marital residence is owned jointly by the parties as tenants by the entirety, creating not only joint ownership rights, but joint possessory rights in the property as well. If there are children involved, that creates a whole other set of considerations and concerns. If there are bona fide issues of custody and parenting time, moving out could dramatically affect those issues, and potentially create a status quo that might be difficult to overcome. Is there any recourse to this intolerable living situation until the divorce matter is resolved, particularly if it could be years before a court hears and decides the case?

Settlement always remains an option, and for some continuing to the in the presence of their hated spouse day-after-day is sufficient motivation to bring about that settlement. For many, that hatred trumps the ability to settle – at least for a time. There are often other reasons why an early settlement is not feasible – financial, discovery, etc. Would the proposed non-DV Restraining Orders be an alternative?

In reviewing the proposed legislation, whether the Senate version (S-2237) or the Assembly version (A-2640), the answer would seem to be NO. While not expressly stated in the language of the proposed statute, the Statement in support thereof makes clear that it was intended to authorize the issuance of Restraining Orders in situations where the Domestic Violence statutes were inapplicable because the victim lacked a prior or existing spousal, household or dating relationship with the offender. Hence, this proposed law was intended to allow victims in other situations, for example where the victim did not know the defendant or where the defendant was casual acquaintance or co-worker, to obtain restraining orders as well. Hence, would a court have the jurisdiction to act under this statute if a spousal, household or dating relationship existed? Further, the types of restraints a court could issue under this proposed law are more restrictive and limited than those provided for under the Domestic Violence statute. The restraints are largely designed to prohibit or limit contact, but may include restraints against the defendant entering the residence, property, school or place of employment of the Plaintiff. Could this be interpreted as also giving the Court authority to remove a Defendant from their residence or awarding possession of that residence of the Plaintiff? There is no provision under this proposed statute giving the court jurisdiction or authority to address custody or parenting time issues, or to address monetary or financial matters, even those of a temporary or interim nature. Most importantly, under this proposed law, it still requires as a predicate act for the issue of any restraining order a similar list of criminal offenses as those contained in the Domestic Violence statute. If such a predicate act allegedly occurred in a “domestic” situation, one could simply proceed for relief under the Domestic Violence laws. This is not a solution if no such predicate criminal-type act occurred.

Are there any other options? Ask us old-time divorce lawyers, and they will tell you about something known as a Roberts hearing. What is a Roberts hearing? Years before the Domestic Violence laws were initially enacted in 1981, Judge Consodine in the case of Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969), was confronted with a Pendente Lite application by the Plaintiff seeking to enjoin the Defendant from entering the marital home owned as tenants by the entirety, predicated on physical extreme cruelty. Looking to other jurisdictions, the court determined that under its general equity powers, that it had authority to act on this motion, particularly where there has been or maybe a threat of harm evidencing a danger of future injury or damage if a party was not excluded from the home, but that in such matters, a hearing would be warranted before deciding such matters.

In the 1972 case of S v. A, 118 N.J. Super. 69 (Ch. Div.1972), Judge Consodine looked to the Court’s inherent parens patriae jurisdiction in extending the principles in Roberts to consider an application to restrain a mother, who not only allegedly suffered from mental or alcoholic disabilities, but who made unannounced absences and/or unannounced returns of irregular duration from and to the marital home, from returning thereto as being detrimental to best interests of the parties’ minor children. Later Judge Krafte, in the case of Degenaars vs. Degenaars, 186 N.J. Super. 233 (Ch. Div. 1982), held that a court of equity could a order a spouse, who voluntarily moved from the marital residence and maintained a residence elsewhere for a considerable period of time, to remain out of the marital residence against his will even if there was no definitive proof of danger of actual physical or emotional injury to remaining spouse or children.

However, the prevalence of these Roberts-type applications and hearings largely evaporated after the enactment of the Domestic Violence Act in 1981 and its subsequent revision in 1991. If there were issues of abuse or violence, as appeared to have been that case in Roberts, the Domestic Violence laws would usually take precedence. If an application to restrain a spouse from a residence was based upon a Best Interest of the Children argument, and wanting to avoid them being exposed to an unhealthy environment, courts became hesitant about even considering them as being nothing more than an attempt to force the Court to prematurely decide issues of custody. Court Rule 5:8-6, directing that custody hearings take place no later than 6 months after the last responsive pleading, was obviously designed to avoid these situations and have these issues be decided promptly, and hopefully limiting the children’s exposure to their parent’s conflict and/or a unhealthy home environment.

The practical reality is that it is rare for custody hearings to be conducted in 6 months. It is often years before they are tried. When children are involved, even if the non-DV restraints under the proposed legislation are not the answer, is it time to possibly revisit courts allowing for some sort of Roberts-type relief, so as to minimize the children’s exposure to their parents “Divorce Wars” pending disposition of the custody/divorce matter?