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Know Your Rights – Divorce & Child Custody


This general information is related to domestic violence and the legal system. It does not provide specific advice for your individual circumstances, and it is not a substitute for attorney counseling or representation. If you would like more information, or have specific legal questions, please contact the NJCEDV Staff Attorney at (609) 584-8107.

Domestic Violence and Divorce

Divorce can be a difficult time in anyone’s life. With domestic violence, it can be even more complicated. Use the information below as a resource, but remember to consult with an attorney or a program to help see you through the process.

How do I go about filing for a divorce?

You will need to provide the reason you are seeking a divorce in what is called your “divorce complaint”. This reason is called a “cause of action”. (Some examples include extreme cruelty, desertion, etc.) A divorce complaint will then need to be prepared and filed with the court. The complaint will then be delivered (“served”) to the other party. The assistance of attorney is preferable, particularly since there has been domestic violence, you may have children, and you may own property. Also, you may wish to request monetary compensation (also known as “damages”) from your abuser for your domestic violence sufferings. If you seek damages from your abuser for domestic violence, this must be requested in the divorce complaint. Otherwise, you will lose that right.

What can I expect from a divorce settlement? What are my financial rights?

You can expect that the marital assets, including property, and the marital debts will be divided “fairly” (this does not necessarily mean 50/50) between you and your abuser. This is called “equitable distribution”. Also, issues of child custody, child support, and spousal support will be addressed if necessary. Any further details pertaining to your financial rights may be specific to your own case. Be sure to participate in and agree to all aspects of the settlement.
Custody, Visitation and Child Support

The safety of your children is naturally a great concern, particularly as you prepare to leave an abusive relationship. It’s important to know your rights under NJ law.

What can I expect if I initiate a custody case?

You can expect to have a hearing in family court. If your abuser states that he/she too wants custody, you can expect an investigation into what is in the best interest of your children. If you do not already have a Final Restraining Order, the court will require mediation before this investigation. In addition to an attorney, you may want or need an expert to make evaluations for the court.

How will this change if I decide to leave the state?

If you have custody and you plan to leave the state, you will need written permission from either the other parent of your children or from the court. If you do not already have custody and the other parent does not give permission to leave the state, you must file for a hearing in family court as part of filing for custody. Do not leave the state with the children without this written permission or you may be brought up on kidnapping charges.

What kind of visitation rights will my abuser be entitled to regarding our children?

Whether or not your abuser has abused, neglected or otherwise endangered the children will be a factor in the court’s determination of whether he/she will be entitled to visitation, how much visitation he/she will be entitled to, and whether or not it is supervised. If you have or are filing for a restraining order (your case will be on the F.V. docket) and your children’s safety is at issue, you should request a “risk assessment”. This means that the court will assign someone to determine whether or not your children will be safe with your abuser. If you are filing for a divorce or post divorce motion (this means your case will be on the F.M. docket), or if you are married, but have not yet filed for a divorce or restraining order (this means your case will be on the F.D. docket), you cannot obtain a risk assessment. Instead, there will be a Probation Department Investigation to decide custody and visitation.

How will his visitation rights change if I am out of state?

If you are out of state, his/her visits may be less frequent but longer in duration.

What can I expect in terms of child support?

You can expect the court to calculate child support based upon the income of both parents, the number of children, and possibly the amount of time the parent who does not have custody will spend with the children. You may request that the support be deducted directly from your abuser’s paycheck (“wage garnishment”) or paid through the county child support probation department.
Domestic Violence Related Medical Expenses

You can incur significant medical expenses while in an abusive relationship. Here are some ways you can get assistance.

What am I entitled to concerning personal injury/medical expenses related to my domestic violence situation?

You are entitled to request monetary compensation (“damages”) from your abuser as part of your restraining order or divorce hearings. The abuser may have to reimburse you for medical expenses, attorney’s fees, etc., although this is the judge’s decision. If you do not request damages as part of the Final Restraining Order hearing, you should say, “I reserve my right to seek damages in another proceeding.” This will allow you to seek damages when you are in court again for another issue, such as your divorce.
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