Domestic violence, unfortunately, is too often a factor in too many divorce cases in New York. Domestic violence can harm you and your children, so the state of New York takes even a threat of domestic violence very seriously.

If you are seeking or planning to seek a divorce, and if domestic violence has happened – or has been threatened – an experienced Westchester County divorce attorney can handle your divorce and help you to protect yourself and your children.

WHAT RELATIONSHIPS ARE GOVERNED BY DOMESTIC VIOLENCE LAWS?

An “order of protection” may be issued by a New York court to protect you and your children from abuse and domestic violence if the allegedly abusive party is:

  • a current or former spouse
  • a relative by marriage or blood
  • the other parent of your child
  • someone you have been with in an intimate (not necessarily sexual) relationship

WHAT DOES AN ORDER OF PROTECTION PROVIDE?

If you are concerned about safety for yourself and your children, a New York divorce lawyer can request an order of protection on your behalf.

courthouse

An order of protection will:

  • keep an abusive person from the presence of your children
  • force an abuser to leave your home
  • obligate your child’s other parent to obey the court’s child support order
  • keep an abusive person from acquiring, owning, or possessing a firearm

It’s true that an order of protection may not stop an abuser from harassing or even harming someone, but the order of protection lets a domestic violence victim have the abuser placed under arrest if the order is violated.

EXACTLY WHAT CONSTITUTES DOMESTIC VIOLENCE?

In New York, a domestic violence victim may bring criminal charges in a criminal court, civil charges in family court, or simultaneous legal actions in both court systems.

The phrase “domestic violence” can refer to a variety of abusive actions and circumstances. The U.S. Department of Justice defines domestic violence to include these five types of abuse:

  • emotional abuse
  • financial abuse
  • physical violence
  • psychological abuse
  • sexual abuse or violence

If you are a victim of domestic violence, now is the time to seek legal help. A good New York divorce lawyer will help you obtain protection and then walk you from start to finish through the divorce process.

WHAT ARE THE PENALTIES FOR VIOLATING A PROTECTION ORDER?

If someone in New York violates an order of protection, that person can be charged with either felony or misdemeanor contempt of court.

arrested for restraining order

Depending on the severity of the protection order’s violation, the offender can face these penalties if convicted of contempt of court:

  • Second-degree contempt of court, a Class A misdemeanor, may be penalized with a year in jail and a $1,000 fine.
  • First-degree contempt of court, a Class E felony, may be penalized with as much as four years (and a mandatory minimum one year) in prison.
  • First-degree aggravated criminal contempt of court, a Class D felony, may be penalized with as much as seven years (and a mandatory minimum one year) in prison.

Not every divorce involves domestic violence, but everyone who divorces in New York has this in common; you must be represented by an accomplished divorce lawyer who will:

  • see to it that you are treated fairly at every stage of the divorce process
  • passionately advocate on your behalf for the best possible divorce settlement

WHAT ELSE SHOULD YOU KNOW ABOUT DIVORCE IN NEW YORK?

Before you make any final decisions about a divorce or take any drastic legal action, consult first with a top-rated New York divorce lawyer. You may have options that you’re not aware of, and you’ll find that a qualified attorney’s advice and insights are invaluable.

You must meet one of these three residency requirements to file for a divorce in the state of New York:

  • At least one partner has resided continuously in the state for at least two years prior to divorce papers being filed; or
  • Both partners have resided continuously in the state for at least one year prior to divorce papers being filed, and (1) you were married in New York, or (2) you resided in New York during the marriage, or (3) the grounds for the divorce occurred in New York; or
  • Both partners reside in the state at the time the divorce papers are filed, and the grounds for the divorce occurred in New York.

DO YOU NEED “GROUNDS” FOR A NEW YORK DIVORCE?

Divorces in New York are either contested or uncontested. In an uncontested divorce, the partners settle any disputed matters privately and by themselves or with help from their lawyers. In a contested divorce, a judge settles any disputes over finances, properties, or children.

judge in divorce case

One partner’s declaration of an “irretrievable breakdown” in a marriage is all that is necessary to obtain a divorce in New York. However, a marriage partner may also seek a divorce in New York on the grounds of the other partner’s:

  • adultery
  • abandonment for a minimum of a year
  • cruel or inhuman treatment, meaning domestic violence
  • imprisonment for a minimum of three years for a felony conviction

WHAT IF A DOMESTIC VIOLENCE ACCUSATION IS FABRICATED?

Domestic violence is a genuine and imminent threat to many parents and children, but the courts in New York, as you might imagine, also have to deal with fabricated domestic violence claims.

If you’re falsely accused of domestic violence in the course of a divorce proceeding, it’s imperative to be represented by a divorce lawyer who has criminal defense experience and knows how to protect your rights.

criminal and family law

A phony domestic violence accusation in a divorce can be devastating. You could be forced out of your home, lose the custody of your children, and in some cases, even visitation privileges could be denied.

WHEN SHOULD YOU SPEAK TO A DIVORCE LAW FIRM IN NY?

Every divorce is difficult. Divorces that involve domestic violence are even more difficult. You’ll need to have a reliable advocate working hard on your behalf to resolve the difficulties and bring your divorce to a fair and equitable resolution.

Before you file for divorce – or as soon as you are served divorce papers – arrange to meet with an experienced Westchester County divorce attorney to discuss your rights and options. You have the right to top-notch legal help, but you must take the first step and make the call.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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