If your spouse has physically hurt you, threatened your safety, or you're afraid that the situation could become violent, you're dealing with something much more important than an ordinary disagreement between divorcing spouses.
And if you're considering divorce, there may actually be two separate legal issues that need your attention. One is your divorce. The other is your immediate safety.
Does Physical Abuse Matter in a New Jersey Divorce?
Yes, but exactly how it matters depends upon what happened and which issues are involved in your case. Physical abuse can potentially become relevant to domestic violence proceedings, restraining orders, child custody, parenting time, and other decisions involving the safety of you or your children.
But I wouldn't start by asking how the abuse will help you "win" your divorce. I'd start by asking whether you and your children are safe.
Can Physical Abuse Lead to a Restraining Order?
Potentially, yes. New Jersey's Prevention of Domestic Violence Act identifies specific acts that can constitute domestic violence. Those include assault, as well as other acts such as terroristic threats, harassment, stalking, criminal restraint, and sexual assault.
A restraining order is different from the divorce itself. Its purpose is protection. Depending upon the circumstances, a restraining order can include provisions addressing contact between the parties, possession of the home, temporary custody, and other protections.
If you're in immediate danger, don't wait for your divorce case to work its way through the court system before addressing your safety.
What If There Has Been Only One Incident?
Don't assume that physical abuse has to happen repeatedly before it matters. If your spouse physically assaults you, the fact that it happened once doesn't mean you should ignore it.
At the same time, every domestic violence case is fact-specific. What happened, the circumstances surrounding the incident, any prior history between the parties, and the need for protection can all become important.
Tell your attorney exactly what happened rather than minimizing it or trying to decide for yourself whether it was "serious enough."
How Can Physical Abuse Affect Child Custody?
Domestic violence can be particularly important when children are involved.
New Jersey courts decide custody based upon the best interests of the child. Among the factors the court considers are any history of domestic violence and the safety of the child and either parent from physical abuse by the other parent.
That doesn't mean a single allegation automatically determines custody. The court has to consider the facts and circumstances of the particular case. But if you or your children have experienced physical violence, or you have legitimate concerns about your children's safety during parenting time, tell your divorce attorney.
Don't assume that it's irrelevant simply because the violence was directed at you rather than directly at the children.
Should You Document Physical Abuse?
Evidence can become very important in a domestic violence or contested custody case.
Depending upon what happened, relevant evidence might include photographs of injuries, medical records, police reports, text messages, emails, voicemails, witness information, or other records relating to the incident.
Preserve evidence that you already lawfully possess. But your first priority during a dangerous situation should be protecting yourself and your children, not creating the perfect record for a future court case.
If you're injured, seek appropriate medical attention. If you're in immediate danger, contact law enforcement or emergency services.
Don't Minimize What Happened
I've practiced family law long enough to know that people sometimes minimize serious conduct by a spouse. They tell themselves: "It only happened once." "My spouse was really angry." "The children didn't see it." "There wasn't a serious injury." "I don't want to make things worse."
Those circumstances may be relevant, but they don't mean you should keep important information from your attorney. Tell your lawyer what actually happened. Then you can discuss whether it affects the divorce, whether domestic violence protections should be considered, whether custody or parenting time needs to be addressed, and what your next steps should be.
Physical Abuse and Divorce Are Different Legal Issues
This distinction is important.
You don't necessarily need to prove physical abuse in order to obtain a divorce in New Jersey. And filing for divorce isn't the same thing as obtaining protection under New Jersey's domestic violence laws.
Sometimes the two proceedings occur at the same time. Sometimes they don't. That's why someone experiencing physical abuse shouldn't assume that simply filing for divorce will address all of the safety issues involved.
Protect Yourself First
If physical abuse is part of your marriage, your divorce strategy needs to account for that reality.
You may need to think differently about when and how you tell your spouse you're leaving, access to important documents and finances, where you and your children will live, parenting arrangements, and whether legal protection is necessary. Those decisions should be based upon your particular circumstances.
If you're preparing for divorce and want to understand the legal and financial issues you'll be facing, my free Divorce Smarter Course will walk you through the major decisions involved in a New Jersey divorce.
Until next time,
Steve