Kicked Out-Domestic Violence, Restraining Orders & Divorce in NJ

1) My wife and I are having marital problems. We will probably end up getting a divorce. In the meantime, she is threatening to have me kicked out of the house. Can she do that?

The only way to get a spouse (or live-in significant other, for that matter) out of the house, in New Jersey, is with a restraining order under the Prevention of Domestic Violence Act (PDVA).

2) But, can she kick me out of the house?

Under the PDVA, an alleged victim can apply for a temporary restraining order (TRO) without giving you any notice.

She will need to appear in Court, complete necessary forms, and swear that the statements they contain are true. Then, she will appear before the Judge, who will swear her in, and listen to her story. She will need to convince the Judge that the TRO is "necessary to protect [her] life, health or well-being...." and that she "is in danger of domestic violence..."

As you can see, she does not have to prove that there actually was any domestic violence in order to have you removed from the house.

3) That isn't fair! What can I do?

Because she was able to apply for this TRO without any notice to you, and in an effort to protect your rights, you are entitled to an immediate appeal, generally held within 24 - 48 hours of your request.

4) What happens at the appeal?

Because of the ramifications, you are strongly urged to hire an attorney before you request your appeal, and to enlist his/her services. This is because, if you lose, you will be permanently restrained from returning to your home, and your wife will have succeeded in gaining the tactical advantage she sought. This is not to say that an attorney will prevent this from happening; just that your chances of success are immensely better with an attorney than they are without one.

At the appeal, your wife will testify as to the events that led her to request the TRO. Your attorney will have the opportunity to cross-examine her, or to question her. She will present other witnesses, if any, as well as any physical evidence she may have. Again, your attorney will have the opportunity to cross-examine each of the witnesses.

Then, you will have the opportunity to testify on your own behalf. Afterwards, your wife's attorney (or your wife, if she has not hired an attorney) will have the opportunity to cross-examine you.

If you are successful, the TRO is dissolved. If not, you are likely to face a Final Restraining Order (FRO).

5) What if I do not request an appeal?

In that case, you are still entitled to a hearing within 10 days. All of the steps outlined above still apply: you should still hire an attorney; the trial is conducted the same, with witnesses, and so on.

6) What "tactical advantage" will my wife have gained if I do not fight this, or if she wins?

The FRO will provide for numerous points of relief, which may include any or all of the following: 1) exclusive possession of the house; child support; spousal support; custody of the children; limited visitation with the children for you; domestic violence counseling for you; monetary compensation for damages she sustained, including her attorney fees; and more.

7) But that doesn't sound fair.

This site is not primarily devoted to Domestic Violence, and a thorough discussion of the PDVA would take pages, if not an entire book. The PDVA was created to address certain issues. Like most laws, it has good points and it has bad points.

If you are faced with a Domestic Violence Restraining Order, you are strongly urged to consult an attorney immediately. The outcome of any divorce proceedings can, very literally, be determined by the presence of an FRO.