A divorce is stressful even under the best of circumstances. But when there has been domestic violence within the family, the affected spouse may not wait until the divorce is final. They may seek an order of protection–i.e., a restraining order–against the other spouse. When this happens, what does it mean for the divorce itself?
What an Order of Protection Actually Means
Not all restraining orders are the same. Depending on the facts and circumstances of a case, a New York Family Court judge can issue an order of protection that may include any or all of the following:
- Require the respondent spouse to “stay away” from the petitioner spouse and their children;
- Direct the respondent to refrain from certain acts, such as verbally threatening or abusing the petitioner and their children;
- Require the respondent to allow the petitioner visitation with their children;
- Exclude the respondent from the marital home regardless of who owns the property; and
- Direct the respondent to pay temporary child support.
Keep in mind that Family Court proceedings are civil in nature. The petitioner spouse does not have to prove the defendant’s guilt of a criminal offense. However, it is a crime to violate an order of protection. And in some cases, criminal allegations of domestic violence may be consolidated with divorce and family law matters in New York State’s Integrated Domestic Violence Courts.
Domestic Violence Allegations May Impact Alimony and Child Custody
New York Domestic Relations Law requires a judge to consider domestic violence allegations in any child custody proceeding. Domestic violence allegations may also be considered as one of many factors in awarding spousal maintenance (alimony) as part of a final divorce decree. Again, this is not a criminal matter, so the accusing spouse only needs to prove that it is more likely than not that domestic violence occurred.
With respect to child custody, even if the court finds there has been domestic violence, that does not automatically end the inquiry. The judge must look at all relevant factors and determine what would be in the “best interests of the child.” In many cases, this means that the accused parent will still be given limited, supervised visitation rights with the child.
Dealing With the Long-Term Legal Consequences of a Restraining Order
The resolution of a divorce case does not necessarily mean the end of an order of protection. Such orders may continue in force for several months or years depending on its terms. It is also possible that criminal domestic violence charges may be separately brought against the accused spouse.
Given the serious consequences of a domestic violence allegation on a divorce–both for the accuser and the accused–it is imperative that each spouse works with an experienced Saratoga County family lawyer. If you need advice or assistance, call The Colwell Law Group, LLC, at 518-462-4242 to schedule a no risk consultation with one of our Schenectady County family law attorneys today.