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Barring your Spouse from the Marital Home During a Contentious Divorce

divorced couple with divorce captions in middle

Sometimes, once-sane people can go a little crazy in the midst of a major life event, such as a divorce. Your spouse might not have been physically violent or threatening prior to the end of your relationship, but that person became dangerous once you initiated divorce proceedings. If you have begun to fear for your safety or the safety of your children, but your spouse still has a legal right to be in the home you shared, consider obtaining a temporary restraining order.

Temporary Restraining Order Process

If you have either already been abused by your spouse or live-in partner, or feel that your physical well-being is threatened by that person, you can apply for a domestic violence temporary restraining order. This order can keep the threatening or abusive individual away from you and your home for 10 days, during which time the court will arrange for a hearing to be held so that a more long-lasting restraining order can be issued, if necessary. The person against whom you want a restraining order does not need to be present for a temporary restraining order to be issued. You can apply for such an order either between 8:30 am and 3:30 pm at your local municipal court house, or by going to a local police station. If you have an emergency need for a restraining order during a night, weekend, or holiday, you can call the police, who will refer you to an on-duty municipal judge to issue the order over the phone.

Once the order is in place, the defendant will be served with the order by a law enforcement officer. That person will then be required to cut off all contact with the victim and immediately vacate the home, if he or she lives with the abused or threatened individual. Should the threatening spouse or partner violate the order, that person does so at risk of arrest.

Generally, the standard to obtain a temporary restraining order is fairly low, since the orders do not last for a long time, and the possible harm that could result from not issuing such an order is high. The hearing for a final restraining order, or for an extension of the existing temporary restraining order, will be more involved, and will require you to testify in open court to the threats or abuse that you experienced. The alleged abuser has a right to testify to his or her side of the story, as well. You may wish to obtain representation for a final restraining order hearing, or to discuss other legal options to ensure that you and your children remain safe.

If you have been the victim of domestic violence, or are fearful of your estranged spouse’s capability for violence, speak with an attorney who will know how to best ensure your safety. Contact Union, New Jersey family law attorney John B. D’Alessandro for a consultation, at 908-964-0102.

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