Domestic Violence & Divorce
Domestic violence and abuse can tear a family apart and make divorce absolutely necessary. Even more unfortunately, domestic violence can also make it difficult for some individuals to achieve separation, or even approach the topic with their abusers. In these instances, it is critical to know the tools in family law at your disposal that seek to protect family members from domestic violence.50-B Protective Order
North Carolina law provides protections for domestic violence victims that are separate and distinct from any criminal matters that may come from the same incidents of domestic violence. A 50-B Protective Order, also commonly called a restraining order, requires an abuser to keep their distance from a victim. In general, if the protective order is granted and the abuser violates the order, they may be held in contempt of court and imprisoned. A victim interested in filing for a 50B Protective Order must file a Complaint and Motion for Domestic Violence Protective Order in the county courthouse in which the victim lives. They must also submit a Summons (see "Summons for Protective Orders" below) to the Clerk of Court so that the Defendant can be served with notice of the action.
Regardless of whether or not the victim pursues a Temporary Restraining Order (see below), he or she must set the matter for a hearing before a District Court Judge. This hearing will typically occur approximately ten (10) days from the date on which the victim files the Complaint.Temporary Protective Order
Once an individual or their attorney has filed the Complaint and Motion for a 50-B Protective Order, he or she can ask the court for a temporary "ex parte" restraining order if they or their immediate family members are in immediate danger. A temporary restraining order is only effective for ten (10) days. "Ex parte" means one-sided, meaning the person against whom the restraining order is sought does not have to be present for the emergency proceeding. The judge will consider whether the Defendant:
- Attempted to cause or intentionally caused bodily injury to the plaintiff (victim) spouse or children living with or in the custody of the plaintiff spouse
- Put the plaintiff spouse or a member of the plaintiff's household or family in fear of immediate serious bodily injury
- Placed the plaintiff or a member of the plaintiff's household or family in fear of continued harassment that rises to the level of inflicting substantial emotional distress
- Committed a sexual offense against the plaintiff spouse or a minor child(ren) living with or in the custody of the plaintiff spouse
- Is in possession of or has access to firearms, ammunition and gun permits
- Used or threatened to use a deadly weapon against the plaintiff or a minor child(ren) living with or in the custody of the plaintiff spouse
- Has a pattern of prior conduct involving the use or threatened use of violence with a firearm
- Threatened to seriously injure or kill the plaintiff or a minor child(ren) living with or in the custody of the plaintiff spouse
- Made threats to commit suicide
- Inflicted serious injury to the plaintiff or a minor child(ren) living with or in the custody of the plaintiff
Whether or not a temporary restraining order is pursued, the person against whom a 50-B Protective Order is sought must be served with the Complaint and Motion for the Protective Order once it is filed with the court. The individual must complete a Summons at the local courthouse when they file the Complaint. There are other methods of service available in North Carolina's laws of civil procedure depending on the facts of the case, but it is essential that the Defendant be served with the Summons and Complaint or the victim's efforts to obtain the restraining order may be dismissed.Divorce From Bed and Board
Somewhat of a misnomer, divorce from bed and board is not a legally binding divorce action, but rather a court-ordered separation. It is sometimes used to force a spouse to leave the marital residence and allege marital misconduct such as abuse and excessive use of alcohol or drugs. If you have an abusive spouse that will not leave the marital home, this can make it impossible to achieve the one-year separation period that is required in North Carolina for a true divorce (called an "absolute divorce") to be granted. A judgment of divorce from bed and board can provide freedom from this predicament and force the abuser to move out.
If you or a loved one is facing domestic violence within a 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 in Mecklenburg, Iredell and Union counties. Divorce can be an unwieldy process even without domestic violence issues, and dealing with worrying about the safety of you and your loved ones makes the procedure even more burdensome. Contact us today to allow one of our family law attorney to take charge of your case and help provide you with the protection you and your family deserve.