Ask The Attorney: Can I Get a Restraining Order Against Husband Although Abuse Occurred Months Ago?

While a restraining order can be obtained for a domestic violence incident which occurred in the past, it should never be used to gain advantage in divorce proceedings.

Dear Ask the Attorney:

A few months ago my husband hit me in front of our children.  He immediately apologized but I have asked him to move out.  Now, he is being verbally abusive while he takes his time packing his stuff.  I know I should have called the police on the day that he hit me, but I didn’t.  Can I do so now to force him to move out faster?


Our Guest Blogger is Michael R. Ascher, Esq.  Mr. Ascher is a partner in the firm and is engaged in a litigation practice handling both criminal and complex civil matters. His practice includes all categories of criminal cases including drunk driving defense, sex offenses, drug and white collar crimes, computer crime, conspiracy, fraud & theft cases and matters involving the Division of Youth and Family Services (DYFS).

Dear J.R.

In New Jersey, in a Domestic Violence matter, there are fourteen (14) enumerated prohibited acts, ranging from homicide and assault to harassment.  Any one of those acts would entitle a victim to obtain a Temporary Restraining Order. A Restraining Order may be issued based upon specific incident and a prior history of acts of Domestic Violence. 


It is always best to file the Domestic Violence Complaint as soon as the incident occurs.  The reason for that is simple and clear.  The more time that goes by the less likely it is that a Court will believe that you are in fear for your safety.  However, the passage of time does not automatically bar the victim from obtaining a Restraining Order, it only makes it more difficult if there is a significant passage of time.  Since your incident happened a few months ago, you will be confronted by the question of why you waited so long.  If there has been a prior history of Domestic Violence that history should be outlined in the Complaint and explained to the Judge.  That would explain why there was not an immediate filing of a Complaint.  Courts in New Jersey recognize the existence of the cycle of Domestic Violence that often times keeps people from timely filing a Complaint due to their fear of their abuser.  If you now wish to file a Domestic Violence Complaint, you may do so. 


During normal Court hours, you should go to the Courthouse in the County in which you reside and fill out the Complaint with the assistance of the Domestic Violence Unit.  Alternatively, you should go to a Police Department after normal Court hours, file a Police Report and then seek to obtain a Temporary Restraining Order. 


Your Domestic Violence Complaint should be filed as soon as possible to the date to the actual occurrence.  Every day that passes minimizes the chance that a Complaint will be accepted by the Court after a Hearing.  The Court may preliminarily grant you a Temporary Restraining Order subject to a Final Hearing at which time, your husband would have the ability to present his side of the story.  That may well include your husband filing a Cross-Complaint for Domestic Violence against you citing instances of Domestic Violence that has occurred in the months since the incident. 


At no time should the Domestic Violence be used to gain an advantage in any other proceedings, such as a divorce.  The Courts do not appreciate such misuse of the system.  The Courts are concerned with protecting individuals where actual Domestic Violence has occurred.  Remember, Domestic Violence is not necessarily an assaultive behavior.  It may also be based upon harassment, including verbal and sexual abuse. 


Michael R. Ascher, Esq.

“Ask the Attorney” is a blog in which answers to your legal questions submitted to asktheattorney@einhornharris.com may be answered.  The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney-client relationship.  The facts of each case is different, therefore you should seek competent legal representation.  

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Philip McCrackin October 04, 2012 at 06:00 PM
Truth is you can tell any lie to the police. Make-up anything you want and the Judge will sign the Restraining Order. The Judge is not going to get caught with his "pants down" if the defendant does do something. Remember the Domestic Violence Act is for the "Prevention" of domestic violence. It is Civil Court and the standard for proof is very,very low! And the attorneys who have this kind of practice know this. In fact, you don't need any evidence at all. It is all he said, she said. and the Judge will ALWAYS go with what she said as many of these firms know.The Courts are more interested in protecting themselves rather then the individual rights of it's Citizens. Some firms in the area even use this as a technique in a contentious divorce. Some firms use the law to advance their case when the opponent is winning. They even teach this technique to their associates. This also increases the billable hours for the firm.Check carefully on the firm you choose to represent you. If that firm has an inordinate amount of cases for domestic violence trials or has many of it's cases resolved at trial then watch out. This is red flag and shows that that firm can not negotiate a settlement in good faith. Most firms in the Morristown require it's attorneys to charge out about 2200 hours per year @ about $375/hr. That is $825,000 in legal fee's.Many firms want to negotiate a resolution in good faith. Those firms are not litigating every case and you should seek them out by asking around.
Walter O. October 05, 2012 at 01:58 PM
I agree! The only abuse that goes on 100% of the time is firms putting clients through the ringer! TRO's are always used as leverage and as a first strike for clients seeking a divorce. To many men get screwed by this tactic, people get angry and yes many times women use this to their advantage and use it as a threat. So people, sit down and talk things through and go separate ways if need be and you won't have to take out a second mortage to pay your lawyer.
lixiao November 13, 2012 at 06:42 AM


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