Family Law, Domestic Violence, and Restraining Orders - Part 2
The law surrounding domestic violence in North Carolina is deceptively complex. In this episode, North Carolina Attorney Bill Powers answers the questions that matter to you when you when you or a loved one is involved in a domestic violence matter.
I had one recently where a gentleman was in a local store and saw a woman that was attractive and tried to talk to her. He said he was trying to use his ... He said, "I was trying to use my vibe with her," and she wasn't interested and she walked away and he followed her to another store and then he followed her into another store, and she became fearful that this person could be a harm to her. She filed a 50C protective order as well as a criminal charge for stalking.
So, we see them in stalking cases, too, where there's no real ... When I saw relationship, it doesn't mean that you have a ... Know a person or not know a person. There are plenty of 50Cs where you know the person, but it's not in a household or that type of traditional, if there's such a thing anymore, of a family relationship or dynamic.
Robert Ingalls: Gotcha. Now, when you're filing these things, is there any issues that a potential client might need to know regarding timing?
Bill Powers: Yes. Now, this is where there's this weird crossover between a lawyer's experience with family law versus criminal defense lawyers. If you asked that question to a criminal defense lawyer, they're going to say, "Well, I'm not responsible for the filing of these things." I do look at when they were filed relative to the charges and there has to be a service of process and they're looking at it purely as a defense measure.
Family law lawyers may sometimes help clients, especially in an abusive type of relationship, to file them. So, in addition to having your normal filing procedures for a complaint, and in fact, divorce proceedings, it's rare that you immediately just file, [inaudible 00:08:34] divorce [inaudible 00:08:34] some timing requirements. This indeed may be the first thing that triggers many of the other steps in a family law type of case.
So, there are timing issues on these things where, especially in very serious domestic violence, physical altercation cases between married parties. You will see a 50B. Then, there may be some sort of filing for a separation, temporary support, child support, which is very, very important, but the first step as a lawyer is to make sure that your client is safe. So, yes, there are timing issues.
Now, there's not the same type of timing issue as you may relate, considered like a statue of limitations, meaning it's relevant if you're being cross-examined and say, "Well, when did this happen?" And you say, "Well, we got married in 1992. She did whatever." There is an aspect of there's an eminent. Something is going to happen if the court doesn't put the protective order in place. There's an idea that this order is necessary. In fact, that's standards that we talk about, where ... And to some extent, it's compelling to the court that if I don't put this protective order and if I don't say, "You don't contact him," or, "You don't contact her," there could be a danger to that person. There could be a harm to that person. There could be additional embarrassment or mental ...
And it's just not a matter ... When I say mental, I just meant this person is irritating me. It's more than that. So, yes, there is a temporal nature. But, sometimes people don't want to talk about ... When they get married and they say, "Well, it's water under the bridge," and it may come up during the proceeding itself as to the reasonableness of the fear. But, as far as a timing issue, we tell people do it now. Get up there and do it now. If you truly are worried about your safety and your wellbeing, why would you wait?
Robert Ingalls: Now, we were talking about marriage a moment ago. What is the effect of domestic violence charges during an action for divorce?
Bill Powers: Great question, and the answer is it depends on what the divorce involves. So, for example, if you have a divorce where you have the primary spouse or the spouse that handles things financially versus the dependent spouse, meaning the spouse maybe isn't working or doesn't have the financial wherewithal to pay for where they live, it could affect who gets, at least on a temporary basis and possibly on a long-term basis, who gets the house or who gets to stay in the house, or if you have children involved, who has primary custody or who has sole custody? And there are different ranges on this spectrum of someone could be mentally abusive, and I don't like this about you, or it could be someone that's physically damaging or harming somebody to such an extent that there's long-term problems associated with it, not just with the person that they're hitting, but the kids. So, they absolutely, positively can effect.
Now, does that effect ultimately the alimony? Like, if you're a bad person, does the court necessarily give you more of the, I guess your estate, for lack of a better term, or the value of your marriage because you're bad and you need to be punished? Not really, but there are balancing factors and consideration as to the dependent spouse what they need in order to maintain their living conditions or take care of the kids. And there is a process and it's a very, very in-depth process that takes sometimes months and months and months of looking through financial records and a lot of the battle in divorce cases involves financial records and determining what the assets are and whether something was brought into the marital, as a marital property versus individual property.