Domestic Violence - Marital Torts
About Domestic Violence
Domestic Violence is not only a crime against an individual, it is a crime against society. The New Jersey Legislature memorialized this belief in The Prevention of Domestic Violence Act of 1991. Thousands of individuals in this State are beaten, tortured and in some instances killed by spouses or cohabitants. The victims and perpetrators of domestic violence are not confined to any single segment of society; victims represent all socioeconomic backgrounds. Children suffer from domestic violence even if they are not physically assaulted. A child who witnesses such violence in his/her household will suffer deep and lasting emotion effects. Domestic violence is not confined to a marital or dating relationship; many elderly and disabled, also become victims of domestic.
The Prevention of Domestic Violence Act:
- Protects victims along with their children from violent/abusive behavior by a known person
- Allows for the filing of civil and/or criminal complaints
- States that TROs (Temporary Restraining Orders) remain effective until the court takes further action
- Can, by use of a TRO, make it illegal for a defendant to possess a firearm or other weapon
- Presuming that the child is best served by being with the non-abusive parent, temporary custody is given to that parent
- Victims can request a risk assessment if the victim feels that the child is in danger in the event of visitation (visitation rights may be postponed)
- Mandatory arrest requirement of alleged abuser if a victim shows signs of injury, physical pain, or other impairments, or if weapons were involved, or if a restraining order is in effect
- Includes harassment, stalking, lewdness, criminal trespass, homicide, assault, kidnaping, criminal restraints, false imprisonment, sexual assault, criminal sexual contact, criminal mischief, burglary, and terrorist threats and as crimes that constitute domestic violence.
As a victim of domestic violence, you do not require a lawyer to obtain the initial TRO or a Final Restraining Order. If, however, the abuser retains counsel to represent him/her at the final hearing, it is strongly recommended that you have counsel as well. Again, you do not need an attorney but you as a victim may still be quite frightened and upset. Facing your attacker in court, who is represented by counsel can be terribly intimidating.
Many times, an incidence of domestic violence will precipitate the filing of a Complaint for Divorce. If this is the case, you will want to speak to your lawyer about including claims for the physical, emotional, economic or other civil losses you suffered as a result of the domestic violence; in other words, a marital tort claim. What is a Tort? A tort is, essentially, a civil wrong. A person may file an action for damages as the result of a tort. Torts may be reckless, negligent, or intentional. The result of a tort may be physical or emotional injuries and include injuries to property. Traditional definitions of this body of law actually exclude most, if not all, of the duties arising out of family relations. So what do they have to do with divorce law in the State of New Jersey? Quite simply, this legal concept has developed into an ever growing remedy available to spouses and/or children who find that they have a cause of action which would clearly exist but for the family setting.
In 1978, the Supreme Court of this State proclaimed that where personal injuries are tortuously inflicted by one spouse upon another, it is just and fair that compensation in appropriate circumstances be afforded the wronged and injured party and, to this end, a suit be allowed to effectuate such recovery. If the parties are divorcing, this claim must be raised in the divorce complaint itself or be lost
Examples include assault and battery; transmission of a sexual disease, marital rape, Battered Woman’s Syndrome; wrongful death; intentional or willful infliction of emotional distress; false imprisonment; use of excessive force (as when a battered wife retaliates and unjustly escalates the conflict); negligent infliction of emotional distress; simple negligence; defamation; wiretapping; negligence per se and an implied cause of action for the violation of a criminal statue.