Injunctions, Criminal Prosecutions and Divorce in Florida
Domestic violence (DV) has implications in a divorce case, both civil and criminal.
Civilly, any act of DV can be addressed in a petition for an injunction against domestic violence. If granted, it results in a domestic violence injunction (DVI), sometimes called a temporary restraining order (TRO). Having a DVI/TRO against you has serious ramifications now and for the rest of your life. It usually becomes a crime to possess a firearm and many jobs will not hire you. An existing DVI/TRO will affect parenting and timesharing issues as well as an alimony claim. Domestic violence can have a significant impact on how the judge perceives the parties when ruling on the issues.
In addition to a civil action brought by the victim, a criminal action can also be brought by the State Attorney’s Office. A criminal prosecution can result in a costly criminal defense, trial and/or conviction. A conviction can result in jail time and a criminal record that will follow you the rest of your life.
Any criminal or civil matter involving domestic violence is serious business that can have a major impact on your divorce or custody case. In the instances where domestic violence is really occurring, it should be reported and handled appropriately through the courts. Unfortunately, no all reported instances of DV are true. It is not at all unusual for a woman to make a false claim in order to gain a tactical advantage in a divorce or custody case. Many such false claims are brought to court every day and if these false or exaggerated claims are not aggressively defended there is a risk DVI/TRO being upheld and converted to a permanent injunction, or worse.
In a situation where the claim is legitimate, the complainant, most oftentimes the woman, needs representation to make sure the claim is properly presented to the judge. Since many times you won’t know the other side has a lawyer until you show up in court, it’s smart to contact a lawyer in advance to assist you in filling out the petition and accompany you to court for the hearing when it gets set.
Domestic violence is a defined term in Chapter 741 of the Florida Statutes and means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
Family or household member means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
A family or household member, who is either the victim of DV or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of DV, may file a sworn petition for an injunction against domestic violence in the circuit court.