Criminal Defense Cases and Family Court Cases (Domestic Violence and Divorce)
My main practice areas are criminal cases and family court cases. As such, I have the opportunity to represent many clients who find themselves accused of a domestic violence charge while at the same time dealing with a contentious divorce case in the family court.
These complex cases usually occur in one of two ways. Either my client is charged with domestic violence (Domestic Violence 3rd Degree, Domestic Violence 2nd Degree, Domestic Violence 1st Degree, or Domestic Violence of a High and Aggravated Nature), and that leads to the alleged victim in the domestic violence case filing for divorce in the family court. Or, my client is engaged in a contentious divorce action in the family court, and during the course of the family court litigation, he or she is charged with domestic violence.
Having a domestic violence charge pending during a divorce action creates a very complex situation. First, from a criminal law standpoint, anything a person says can be used against them. If a final divorce hearing is scheduled before a trial in the domestic violence case, my client has to make a decision if they are going to testify in the divorce hearing. Remember, the client will be testifying under oath in the family court case, which means he or she can be cross examined about the domestic violence allegations. From a criminal law standpoint, it may not be in the client’s best interest to testify. But, from a family court perspective, it can be very detrimental if the client does not testify. A client can assert his or her 5th Amendment right against self-incrimination, but this can hurt a client in the divorce case.
Allegations of domestic violence will also be considered by the Court in determining child custody and visitation issues in the divorce.
In most domestic violence cases, there are bond conditions that prohibit my client and the alleged victim from having any contact. How are the parties going to exchange the children for visitation? Once visitation is established in the family court, I may have to file a motion in criminal court to modify the bond conditions to allow contact pursuant to the family court order.
If my client is convicted of the domestic violence charge, the court may issue a permanent restraining order. If this happens, we need to make sure it takes into consideration the exchange of the minor child for visitation.
The divorce can also creep into the criminal case. A party in a civil case (which divorce is) is prohibited from using the threat of criminal prosecution to gain an advantage in the civil action. But often times in practice, alleged victims in domestic violence cases try and exert leverage in the divorce case by what type of input they provide the prosecution.
As you can see, going through a divorce while also facing a criminal domestic violence charge can be a very complex situation. If you need to speak with a divorce lawyer who handles domestic violence charges, or a domestic violence lawyer who handles divorce cases, please contact me.
