It is true that nearly half of the marriages that occur in NYC end up in divorce proceedings. In today’s world it’s not uncommon for couples to grow apart or experience other relationship problems. Due to this, New York state law allows a spouse to file a divorce action based on one of seven grounds. One of the legally recognized reasons for divorce relates to cases of domestic violence. If you are a victim of spousal abuse and intend to initiate a divorce there is some information you should know.
The Ground of Cruel and Inhuman Treatment
New York’s Domestic Relations Law § 170 mandates that “Cruel and Inhuman Treatment” can be a basis for divorce. Situations involving domestic violence likely fall under this section. However, the law requires more than just the average case of arguing or slight physical contact. Section 170 is intended to cover abuse that “endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant .” Essentially, it must be shown that there is a significant threat to the plaintiff’s physical or mental state.
Whether the treatment by the defendant amounts to cruel or inhuman treatment is highly fact dependent. However, there are some situations that typically meet the standard. Examples of abuse include physical attacks, continued verbal abuse, threats against minors, or rape. Abuse may also include the defendant’s participation in an open, adulterous relationship. The plaintiff will have to prove his or her claims through sufficient evidence. This can include video footage, witness testimony, recorded phone calls or texts, and 911 calls or arrests. If you are unsure whether your situation meets the requirements of Section 170 contact the law office for a detailed consultation.
Child Custody and Domestic Violence
Domestic Relations Law Section 240 allows the court to consider domestic violence in custody hearings. Yet, in order for the court to do so the plaintiff needs to show specific evidence that the abuse occurred. This often requires showing extensive documentation related to the abuse. If the plaintiff can prove this by a preponderance of the evidence the abuse will be used to determine the child’s best interest.
Orders of Protection for Spousal Abuse
Protection orders can be issued by the criminal or family court system. To file a petition for an order in the Family Court you must allege a “family offense.” This is an offense that is akin to a serious case of harassment or assault. The plaintiff must prove the occurence of the event though a sufficient showing of evidence. The plaintiff will also have to attend a hearing before a judge to explain his or her case. A plaintiff may be represented by a lawyer at this hearing. Once the order is issued the plaintiff can receive child support in the interim. The court may also put out a warrant for the defendant.
The court will initially issue a temporary protection order. The order doesn’t take effect until the defendant is served. If the defendant cannot be served due to moving from the area or because of threats of violence the court has other options. For example, a judge can enter a default judgment in the defendant’s absence.
An additional court appearance is necessary to get a permanent protection order. During this hearing, the court will review the evidence again and make a final determination. If approved the order will be in effect for one to three years. When violations occur the petitioner is required to go to court to report the incident. The court will issue a summons for the other party and require them to attend a hearing to explain the conduct.
Criminal Domestic Abuse
Domestic abuse can also be treated as a crime in NYC. For serious family offenses a defendant can be sentenced to prison for up to 25 years. Lesser offenses will require up to a year in jail and up to $1,000 in fines. A wide variety of offenses are covered by New York penal code Sections 120.00 to 121.14.
Getting Advice From a Qualified Lawyer
If you are considering filing a divorce for domestic violence it is important to consult an experienced attorney. These cases involve complex laws and detailed evidence. A NYC domestic violence lawyer can help you put together your case so that you have the best chance of succeeding.
Domestic violence incidents occur more than 960,000 times per year as per statistics from the Department of Justice. Out of those 960,000 occurrences, 85 percent of the victims are women. Domestic violence is a serious offense that can result in harsh penalties because of the nature of the crime. Any person who receives a citation for such an offense is at risk of enduring multiple levels of penalties. The following provides some information about the complex crime of domestic violence.
What Is Domestic Violence?
Domestic violence is an umbrella of crimes that usually occur within the household. Domestic violence commonly occurs between spouses or between parents and their children. However, people can still qualify for domestic violence if they have a different type of relationship than the one that was just stated. For example, an ex-boyfriend and ex-girlfriend can have a domestic violence situation. Two people who share a child can have a domestic violence incident, as well. The highest number of domestic violence incidents are between women and their former boyfriends. Domestic violence is a large umbrella of smaller crimes that can include the following:
Physical Assault or Threats
A large percentage domestic violence incidents are incidents that involve physical assault. Physical assault includes acts such as punching, kicking, pushing, shoving, biting, burning and the like. Physical assault happens between domestic partners, parents and children, siblings and more.
Harassment is a term that can describe a wide variety of actions. For example, calling someone repeatedly after he or she requests a cessation of contact would be considered harassment. Showing up at someone’s house uninvited is a form of harassment, as well. Making undesirable appearances at a person’s job is harassment. Any type of harassment qualifies for a domestic violence suit.
Verbal and Emotional Abuse
Verbal and emotional abuse can qualify as domestic violence crimes because they can damage a person’s psyche and make that person fearful, depressed or unable to function. Verbal abuse is the use of profanity and other demeaning words. Emotional abuse is an abuse type that is difficult to prove, but it consists of manipulation, abandonment and refusal to supply someone with emotional support when that person needs it the most.
The most common form of Sexual Abuse is rape, and it can occur between spouses. A person who says no to intercourse expresses that he or she does not wish for it to occur. Any person who forces it against the other person’s will is guilty of Sexual Abuse. Sexual Abuse could consist of dressing children in a provocative manner or forcing them to watch things such as pornography.
The Penalties for Domestic Violence
Many penalties exist for domestic violence charges as they can have both civil and criminal penalties. For one, one of the parties may receive a restrainer order which will force the other party to stay away from him or her. Parents who are guilty of domestic violence may suffer greatly because they may be denied time with their children. The parties will have to meet inside of a civil courtroom with a judge so that the judge can decide whether a temporary restraining order should be permanent.
The judge may order the defendant to pay a civil fine, as well. In terms of criminal charges, a person could end up with fines, jail time and a permanent criminal record. The severity of the crime will determine the amount of the fines and jail time that may apply. Any person who receives a citation for domestic violence should meet with an attorney as quickly as possible for assistance.
An Experienced Law Office Can Help
Spodek Law Group has been defending people for more than 30 years. Their decades of experience make them eligible to defend a criminal charge such as domestic violence with confidence. The attorneys at Spodek Law Group treat every one of their clients as if they are family members. Furthermore, their success rate is above average. Perhaps the most welcoming piece of information is that the Spodedk Law Group provides a free consultation to prospective clients. Domestic violence defendants can come in for a consultation without worrying about expenses. They can set up their appointments by dealing 888-977-6335.
Our New York domestic violence attorneys handle all aspects of a domestic violence crime. Whether it be the arrest, investigation, or trial, we can handle all elements of your domestic violence incident. Often, these cases are handled by the DA’s office, and are under heightented scrutiny. In Manhattan Criminal Court, all domestic crime misdemeanors are funneled into Part D – Domestic Violence Part. Whether the domestic violence arrest involves assault, harassment, or endangering the welfare of the child, the court will hear all the evidence and listens to the complaints. If there is a parallel court case in Family Court, then the case is sent to the Integrated Domestic Violence Part (IDV court).
Our NYC domestic violence attorneys can handle cases in Queens, Brooklyn, White white plains, Yonkers, or Manhattan, in addition to Long Island. If you have an order of protection as well against you, when the domestic violence occured – we can help. Order of protection makes domestic violence cases even worse, due to the fact that most of the time parties are not supposed to be near each other, or remain connected. If you violate an order of protection, prosecutors can have you arrested for criminal contempt.
NY Domestic Violence Arrests: Understanding the Process
Violating Restraining Orders & Orders of Protection
The Supporting Deposition & Corroborating Affidavit in a NY DV Case
False Domestic Violence Allegations
Defenses to domestic violence
Here are some common misdemeanor and felony charges that might happen as a result of a domestic violence incidence:
Assault crimes – including third degree assault and second degree assault. Examples of this include punches, kicks, which cause substantial pain and visibile bruising. Felony examples include the use of a dangerous instrument.
Aggravated harassment in the second degree. Examples of this include repeat phone calls or texts and harass the other party.
Aggravated criminal contempt – Examples include violating orders of protections or restraining orders
Stalking (4th, 3rd, 2nd degrees) – Examples can include following a person to work, while putting that person in fear of his, or her, safety. Weapons make this worse.
Menacing in the third degree – Examples including threatening to hurt someone – with, or without, some type of dangerous weapon.
Strangulation offenses – Common accusation prosecutors make, where you may your hands on someone else’s neck.
Endagering child welfare – Examples including striking a child, assaulting someone in front of a child, or using drugs around a child.
Criminal mischief – This means breaking a cell phone, damaging furniture or other itmes. The dollar amount of the damages dictate the severity of the crime.
Robbery and Grand Larceny – Examples include taking a cell phone from someones hand.
Computer Crimes – Examples include accessing someones emails or texts without authority.
The list goes on and on. These are just some of the common crimes New York prosecutors may allege. Spodek Law Group’s nyc criminal attorneys have handled these crimes, and worse. Misdemeanors are punishable by a year in jail, and felonies carry sentences in the range of 5, 10, 15, or more years in jail. Domestic incidents have an automatic arrest requirements, which results in incarceration, and stigma to your personal and professional life. Not only could you be imprisoned, you could also be subject to anger management, and community services. If you’re here on a VISA or Green Card, then the domestic violence incident could impact your immigration status. If you have a license, and are a professional, then this incident could harm your job. Our NYC domestic violence attorneys can help protect you from ALL angles.
As soon as you are arrested or questioned in a domestic violence case, you should speak to a criminal attorney who handles domestic violence crimes. Any arrest is horrendous. Allegations can be either true or false. Protect your future, and speak to one of our New York criminal attorneys.
In divorce cases involving domestic violence, a victim’s rights may not be clear. When the end of a marriage is a violent one, it’s best to find a divorce lawyer who focuses on helping victims of domestic violence. The lawyer’s knowledge and skill will help a victim stay safe and get what they deserve in the divorce settlement. Like most states, New York has protocols on handling divorces with domestic violence; read more about them below.
Establishment of a Protective Order
With a divorce lawyer, a victim will present information to the court that proves their spouse presents a threat. Domestic violence isn’t just physical abuse; it includes sexual and emotional abuse as well. Discuss with an attorney some of the things that happened during the marriage, and take prompt action so there’s something to show the court during the protective order petition. When a protective order is granted, the victim gets to stay in the marital home, they get temporary child custody, and the abuser cannot contact them.
Mediation Isn’t the Best Option in a Domestic Violence Divorce
Mediation is for spouses who can come to an amicable agreement about divorce and settlement. An abuser may want mediation instead of a court case because it costs less, and it gives them the chance to bully the other spouse into giving up part of their settlement. Most attorneys will advise clients in domestic violence divorces not to go through mediation because of the potential for further abuse. It’s particularly important to go through the courts when addressing child custody issues.
Child Custody in Domestic Violence Divorces
In most instances, a judge will give full child custody to the domestic violence victim. There must be sufficient evidence that the abuser may harm the victim or the children during a pickup or drop-off. While the other spouse may never have abused the children, the threat of imminent harm to the victim might be enough to convince the judge to award them full custody.
Protection Before, During, and After the Divorce
During a domestic violence divorce, it’s crucial not to downplay the other spouse’s actions or their anger. Many times, a spouse who was never abusive before may become violent out of frustration and rage. When a spouse has shown that they’re capable of causing harm, a victim must protect themselves. Below are a few protective tips for victims.
Find shelter. If a victim fears for their safety when they leave the marriage, or if things become worse during divorce proceedings, they should find a domestic violence shelter and not tell the other spouse where they’re going. In New York, there are numerous domestic violence shelters that protect victims by giving them a secluded, safe place to stay.
Get a restraining order. Petition the court for an order that requires the other spouse to stay a certain distance away. These orders are crucial as they help build a case for divorce on the grounds of domestic violence.
Handling Financial Issues
Many victims don’t have the money to pay an attorney because the abusive spouse controlled the household finances. However, they shouldn’t be discouraged and feel that they’re stuck in an abusive marriage. Many divorce attorneys will help victims of domestic violence by representing them pro bono (free of charge) or at a greatly reduced rate.
It’s Not Necessary to Stay in an Abusive Relationship
A domestic violence victim may feel stuck in their marriage because they fear for their life and their spouse has drained them of all their motivation to leave. It’s important not to give up, though. There is life after divorce, and the abuse does not have to go on. Victims should protect themselves and their children by getting out of the situation as safely and as quickly as possible.
Get Legal Help Today
Divorces are stressful even under the best of circumstances, but they become much more complicated and dangerous when domestic violence is involved. While many victims stay in abusive marriages because they’re afraid or they feel like they can’t afford to leave, there’s help available. After getting out of the situation and moving into a shelter or safe house, a victim should seek legal counsel as soon as possible. Visit the firm’s site for more details or call today to schedule a consultation with a New York domestic violence and divorce attorney.
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