According to the National Domestic Violence Hotline, “1 in 4 women and 1 in 7 men aged 18 and older in the United States have been the victim of severe physical violence by an intimate partner in their lifetime.” Thus, domestic violence is far too frequent and often arises in connection with divorce proceedings. When domestic violence is an issue in a divorce, the abuse has often gone unreported for a significant period of time, as it is difficult enough for abuse victims to leave their abusers let alone when they are connected through the bonds of matrimony.
The reporting of domestic violence can be complicated during a divorce because courts are concerned with separating legitimate domestic violence cases from those filed only to try to gain an advantage in the divorce litigation or as a result of the typical type of arguments that divorcing spouses may have. The courts often consider the latter type of cases as falling within “domestic contretemps.” Since the courts are required to consider whether there was a history of domestic violence, there is a risk that the court may mischaracterize a matter as domestic contretemps rather than domestic violence when there have not been any prior reports of abuse. However, the law makes it clear that a victim’s failure to report abuse should not be construed against him or her.
In order to better protect victims of domestic violence, the New Jersey Legislature passed the Prevention of Domestic Violence Act, N.J.S.A. 2C: 25-17 to -35. This Act was passed “‘to assure the victims of domestic violence the maximum protection from abuse the law can provide.’” As part of the Act, the Legislature encouraged law enforcement and judicial personnel to receive training concerning “the social and psychological context in which domestic violence occurs,” highlighting criminal laws and civil remedies that will be enforced without regard to the fact that a domestic violence occurrence may grow out of a domestic situation.
Following the passage of this Act, cases began to reflect a better understanding of the cycle of domestic abuse, including an improved appreciation as to why victims of domestic violence often remain with their abusers and fail to report the abuse. In Sacharow v. Sacharow, 177 N.J. 62, 78 (2008), the New Jersey Supreme Court discussed the numerous reasons why a legitimate domestic violence complaint may be withdrawn or not even filed in the first place. This includes the victim’s subjugation, isolation, lack of financial resources, and the real threat of violent retaliation.
It is possible that a domestic violence complaint will be viewed with more scrutiny when filed in the midst of a divorce and it is also possible that the court may ultimately make a determination, based on credibility, that there is no significant history of abuse. However, it is improper for a court to find that there is no history of abuse based upon whether or not the alleged victim has reported the abuse in the past. Thus, according to the law it is never too late to seek protection if you are a victim of domestic violence, regardless of whether you have reported past incidents of abuse or whether your first report of the abuse occurs during divorce litigation.