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Legal help

 
 

Frequently Asked Legal Questions

This is general information related to domestic violence and the legal system. It does not provide specific advice for your individual circumstances, and it is not a substitute for attorney counseling or representation.

1. How do I go about filing for a divorce?
You will need to provide the reason you are seeking a divorce in what is called your "divorce complaint". This reason is called a "cause of action". (Some examples include extreme cruelty, desertion, etc.) A divorce complaint will then need to be prepared and filed with the court. The complaint will them be delivered ("served") to the other party. The assistance of attorney is preferable, particularly since there has been domestic violence, you may have children, and you may own property. Also, you may wish to request monetary compensation (also known as "damages") from your abuser for your domestic violence sufferings. If you seek damages from your abuser for domestic violence, this must be requested in the divorce complaint. Otherwise, you will lose that right.

2. What can I expect from a divorce settlement? What are my financial rights?
You can expect that the marital assets, including property, and the marital debts will be divided "fairly" (this does not necessarily mean 50/50) between you and your abuser. This is called "equitable distribution". Also, issues of child custody, child support, and spousal support will be addressed if necessary. Any further details pertaining to your financial rights may be specific to your own case. Be sure to participate in and agree to all aspects of the settlement.

3. What am I entitled to concerning personal injury/medical expenses related to my domestic violence situation?
You are entitled to request monetary compensation ("damages") from your abuser as part of your restraining order or divorce hearings. The abuser may have to reimburse you for medical expenses, attorney's fees, etc., although this is the judge's decision. If you do not request damages as part of the Final Restraining Order hearing, you should say, "I reserve my right to seek damages in another proceeding." This will allow you to seek damages when you are in court again for another issue, such as your divorce.

4. A. What can I expect if I initiate a custody case?
B. How will this change if I decide to leave the state?

A. You can expect to have a hearing in family court. If your abuser states that he/she too wants custody, you can expect an investigation into what is in the best interest of your children. If you do not already have a Final Restraining Order, the court will require mediation before this investigation. In addition to an attorney, you may want or need an expert to make evaluations for the court.

B. If you have custody and you plan to leave the state, you will need written permission from either the father of your children or from the court. If you do not already have custody and the father does not give permission to leave the state, you must file for a hearing in family court as part of filing for custody. ** Do not leave the state with the children without this written permission or you may be brought up on kidnapping charges.

5. A. What kind of visitation rights will my abuser be entitled to regarding our children? B. How will his visitation rights change if I am out of state?

A. Whether or not your abuser has abused, neglected or otherwise endangered the children will be a factor in the court's determination of whether he/she will be entitled to visitation, how much visitation he/she will be entitled to, and whether or not it is supervised. If you have or are filing for a restraining order (your case will be on the F.V. docket) and your children's safety is at issue, you should request a "risk assessment". This means that the court will assign someone to determine whether or not your children will be safe with your abuser. If you are filing for a divorce or post divorce motion (this means your case will be on the F.M. docket), or if you are married, but have not yet filed for a divorce or restraining order (this means your case will be on the F.D. docket), you cannot obtain a risk assessment. Instead, there will be a Probation Department Investigation to decide custody and visitation.

B. If you are out of state, his/her visits may be less frequent but longer duration

6. What can I expect in terms of child support?
You can expect the court to calculate child support based upon the income of both parents, the number of children, and possibly the amount of time the parent who does not have custody will spend with the children. You may request that the support be deducted directly from your abuser's paycheck ("wage garnishment") or paid through the county child support probation department.

7. In a restraining order hearing that resulted from my domestic violence incident, what is the judge likely to order?
The judge has the power to order a final restraining order, preventing the abuser from having any contact with you and keeping him/her away from your home and work. The judge may also include decisions related to custody, visitation, financial support, or other issues in your final restraining order. These will depend upon your individual circumstances.

8. What do I do if my abuser counter-filed for a restraining order or filed a harassment charge in response to my filing for a TRO? You must prepare for the hearing. Bring any witnesses or evidence that support what actually happened.

9. What is a consent order and what makes it valid?
A consent order is an agreement, which is created and willingly entered into by two individuals. A consent order is made valid once it is signed by a judge. * * * However, be aware that a violation of consent order does not lead to arrest the way that violation of a restraining order does. If your abuser violates your consent order, you may return to family court and make a motion for him/her to comply with the order, or, depending upon the type of violation, you may file for a restraining order.

10. What should I expect at my final restraining order hearing?
You will be asked to explain the relationship between yourself and your abuser for the court to determine whether your relationship fits the law, which would allow the court to hear your case. (This is called jurisdiction.) Next, you will be asked to describe what led you to file for the restraining order, and you will need to provide information related to the most recent times you were abused. Be sure to present any witnesses or evidence, including photographs of injuries, medical reports, etc. You will also need to testify to the history of abuse (things your abuser did to you in the past). Be prepared to be questioned by the judge, by your abuser's attorney, or, if he/she does not have an attorney, by the abuser him/herself. After the judge makes his/her decision, if the restraining order is continued, you will now need to explain what you would like to be included in the FRO. This includes custody and visitation arrangements, specific locations and other persons from whom the abuser should be restrained, child and/or spousal support, rent or mortgage payments, possession of specified personal property, seizure of weapons, and/or monetary compensation. Your abuser will also have an opportunity to give input into what he/she thinks the final restraining order should include/require.

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