During the breakdown of a marriage or when a relationship is ending, one spouse may lose his or her temper and commit or attempt to commit acts of domestic violence. This can be due to a stressful financial situation, feelings of frustration, anger, sadness, and the inability to process those emotions effectively, or this can simply be one person’s chosen behavior.
The State of Florida has put in place laws system that will protect you and/or your children from becoming victims of domestic violence or to prevent further incidents of domestic violence.
Domestic violence can be committed against a spouse, romantic partner or children residing in the home.
Domestic violence is “assault” which is an “intentional and unlawful threat to create a reasonable fear that violence or harm is about to occur”, “aggravated assault” which is “an intentional and unlawful threat with a deadly weapon to create a reasonable fear that violence or harm Is about to occur”, “battery” which is an “actual intentional touch with a deadly weapon”, “sexual assault”, “sexual battery” which includes rape, “stalking”, “aggravated stalking”, “kidnapping”, “false imprisonment” or any other criminal offense resulting in physical injury or death to one family or household member by another.
Domestic violence is also threatening to physically abuse or harm another, threatening to conceal or kidnap children, intentionally injuring or killing a family pet, use or threats to use a weapon such as a gun or knife, physically restraining someone from leaving or calling law enforcement, and destruction of personal property such as cell phones or other communication equipment, clothing or other personal items.
If you have been subjected to any of these behaviors by your spouse or partner you are living with, immediately seek an injunction for protection against domestic violence. In order to seek an injunction, you must go in person to the courthouse in the county where you live. You must include in your petition each and every instance of domestic violence or threat that you can remember between you and your spouse and you must allege that you are in imminent fear for your safety or the safety of your children in common.
If your spouse obtained an injunction against you and you have been removed from the home, immediately obtain alternate housing, and contact an attorney. Do not attempt to contact your spouse or your children at this time, and do not go back to the home to get personal items, clothes or paperwork. Also do not go near or to your spouse’s place of employment or children’s schools. Attempting to contact your spouse or children by telephone, including text message, could be a violation of the injunction which could result in your incarceration. Even if you have cooled off, or want to apologize, your attempts to contact your spouse directly will result in additional legal problems.
Often times, when one spouse is contemplating a divorce and that spouse wants the other spouse to find alternative living arrangements, a domestic violence action is filed in an attempt to remove the spouse by court order. This is an unfair and illegal use of the domestic violence laws, but it is effective in removing the unwanted spouse from the residence. Luckily, injunctions that are entered simply to gain advantage over the other spouse are often times dismissed.
When a domestic violence petition is filed and a dissolution of marriage action is filed at the same time or soon after, the domestic violence matter will be assigned to the same judge as the dissolution of marriage matter. False allegations of domestic violence or incidents of domestic violence are factors in many decisions the court may have to make about your case. For example, both are factors in the parenting statute. When determining timesharing and custodial issues, the judges can and will consider false allegations of domestic violence or actual incidents of domestic violence in deciding how much time the children will spend with each parent.
Once you have filed your petition for injunction for protection against domestic violence, and obtained a temporary injunction, your matter will be set for a final “return” hearing. Florida law requires that “return” hearings are set within 14 days of the date of issuance of the injunction. That is not always possible, but in general, return hearings are set within 2-3 weeks of the temporary injunction.
At the “return” hearing, you will present evidence and testimony supporting the claims you alleged in your petition. It is your burden to prove that you were a victim of or in imminent fear of becoming a victim of domestic violence. Your spouse or partner will be permitted to present evidence refuting your claims. After all of the evidence has been presented, the judge will either enter an order granting a final judgment of injunction for protection against domestic violence, enter an order denying your petition for injunction for protection against domestic violence, or if the matter involves allegations of violence against children, could appoint a guardian ad-litem to investigate the allegations and report back to the Court. If a guardian ad-litem is appointed, your hearing will be re-set.
Final judgments of injunction for protection against domestic violence can be dismissed, dissolved or vacated in a few ways. First, when the judge enters the final judgment of injunction for protection against domestic violence, the judge can include a date after which it expires. For example, the injunction could be entered for six (6) months to allow for a cooling off period and expire after a certain date which is clearly stated in the order. Another method of dismissing or dissolving the final judgment of injunction for protection against domestic violence is when the parties agree during or at the end of the divorce that the injunction should be dismissed. Both of you would show up at a hearing and the spouse who filed the petition for injunction for protection against domestic violence would testify to the court that they want the injunction dismissed and that they understand the actions they are taking. Another method of dissolving an injunction is to file a motion to dissolve the final judgment of injunction for protection against domestic violence. You must allege that the circumstances have so changed that there is no need to keep the injunction in place. The judge will set a hearing on your motion to dissolve the injunction, hear evidence and make a ruling.
We can help. Call the law office of Neave Family Law at (954) 981-2200 or contact us and schedule a free consultation today.