Domestic Violence and Divorce

While going through a divorce in Marvin, North Carolina is no doubt a difficult experience, it is often absolutely necessary when domestic violence and abuse are present in the marriage. That being said, domestic violence and abuse often make it even more difficult for some spouses to be able to separate from their abusers. Sometimes they cannot even breach the topic of divorce for fear of retaliation by the abuser. In such circumstances, it is critical to know that there are legal options at your disposal that exist to help protect family from domestic violence.

State law provides legal protections for victims of domestic violence. These protections are different and appart from any criminal issues that may arise from the same domestic violence incidents. Typically referred to as a restraining order, a 50B Protective Order (50-B) mandates that an abuser stay away from a victim.

Generally, if a North Carolina court grants a 50-B and the abuser violates this protective order, he or she may be held in contempt of court and could face imprisonment. A domestic violence victim seeking a 50-B must file a complaint and motion for domestic violence protective order in the Union county courthouse. Additionally, a victim seeking a 50-B must also submit a summons to the clerk of court in order for the defendant (i.e., the alleged abuser) to be served with notice of the 50-B action. Then, the victim must set the matter for a hearing before a North Carolina District Court judge, which typically happens about 10 days from the date the victim filed the complaint.

Once a victim or his or her attorney has filed the complaint a motion for a 50-B protective order, he or she can then ask a North Carolina court to issue a temporary “ex parte” restraining order – if the individual and his or her immediate family members are in immediate danger. “Ex parte” means one-sided; in other words, the party against whom the restraining order is sought need not be present at the emergency hearing. Under North Carolina law, a temporary restraining order is only effective for 10 days.

When considering whether or not to grant an “ex parte” temporary protective order, a North Carolina court will consider if the defendant:

• Placed the victim/plaintiff spouse or a member of the spouse’s household or family in fear of immediate serious bodily injury;
• Intentionally caused or attempted to cause bodily injury to the victim/plaintiff spouse or the children living with or in the custody of the victim/plaintiff spouse;
• Committed a sexual offense against the victim/plaintiff spouse or minor child living with or in the custody of the victim/plaintiff spouse;
• Put the victim/plaintiff spouse or a member of the victim/plaintiff spouse’s household or family in fear of continued harassment rising to the level of causing substantial emotional distress;
• Threatened to kill or seriously injure the victim/plaintiff spouse or minor child living with or in custody of the victim/plaintiff spouse;
• Inflicted serious injury to the victim/plaintiff spouse or minor child living with or in the custody of the victim/plaintiff spouse;
• Threatened to commit suicide;
• Has access to, or is in possession of firearms, ammunition, and gun permits;
• Has a pattern of prior conduct that involves the threatened use of, or the use of, violence with a firearm;
• Threatened to use or used a deadly weapon against the victim/plaintiff spouse or a minor child living with or in the custody of the victim/plaintiff spouse.

Regardless of whether or not an “ex parte” temporary restraining order is pursued by a victim, the person against whom the 50-B Protective Order is sought must be served with the complaint and motion for protective order once it has been filed with a North Carolina court. The movant must complete a summons at the Union County courthouse when the complaint is filed. While there are other methods of service available under the state’s laws of civil procedure depending on the facts of the case at hand, it is critical that the defendant is served with the summons and complaint. Failure to do so can result in the restraining order being dismissed by a court.

If you or someone you care about is dealing with domestic violence within your Union County marriage, speak to a compassionate and experienced family law attorney today. The family law and divorce attorneys at Arnold & Smith, PLLC can advise you further of your resources and options available. Domestic violence issues can complicate the already complicated process of divorce. Contact us today to allow one of our experienced family law attorneys help review your situation and give you guidance as to what legal options are available.