Domestic Violence and Restraining Orders During Divorce
DOMESTIC VIOLENCE AND RESTRAINING ORDERS DURING DIVORCE IN ALBUQUERQUE, NEW MEXICO
In life there is a butterfly effect where one bad break causes a single domino to slowly wobble, crashing into its neighboring block and setting into motion a chain reaction of negative events.
An old adage goes that bad luck comes in threes. This sequence of bad luck can also be seen in legal matters, where one seemingly isolated, bad event results in a series of legal issues.
A common example of this “Rule of Three” takes place with Battery (Domestic Violence) Against a Household, Restraining Orders and Divorce.
Although Domestic Violence, Restraining Orders and Divorce each take place in different courts, at times one underlying event serves as the fuse for an explosion of independent yet interrelated legal matters.
BAD RELATIONSHIPS THAT BECOME VIOLENT IN NEW MEXICO
Troubled relationships often have a tension below the surface that is ready to burst with the slightest touch. In New Mexico, Battery Against a Household Member (Domestic Violence) involves the slightest act of touching or the application of force to a household member, when done in a rude, insolent or angry manner.
Any act of touching, or causing an object to touch a household member can meet this broad definition of “domestic violence.” If a Police Officer is called to your house based on a domestic disturbance, the Officer will interview everyone at your home to see what happened. Any statements that you make to the Officer can and will be used against you. These incriminating statements can also be introduced in court as evidence against you under an exception to hearsay rule known as “Admissions Against Interest.” So if you don’t have anything good to say — don’t say anything at all.
If any family member was touched in an angry way, the Officer will determine who is the “primary aggressor,” placing that individual under arrest.
Assuming that the “primary aggressor” is at the home, this individual will then be booked into the Metropolitan Detention Center (MDC) and will face the criminal charges of Battery Against a Household Member, under NMSA § 30-3-15.
In situations where the “primary aggressor” leaves the house before the Officer arrives – if the Officer believes that an act of domestic violence occurred based on the definition above – then the Officer will file criminal charges and the “primary aggressor” will receive a Criminal Summons in the mail notifying the individual that charges have been filed.
In either scenario the individual found to be the “primary aggressor” will then face the daunting experience of dealing with the legal charges through the Metropolitan Court. As mentioned before in my blog, a conviction for domestic violence carries many harsh penalties, such as permanently restricting one’s right to own or posses a firearm. For more information on the potential penalties of a conviction for domestic violence, click here: Domestic Violence and Gun Rights in Albuquerque, New Mexico.
FILING AN ORDER OF PROTECTION DURING DIVORCE
At times the bad luck does not stop with one facing criminal charges for domestic violence in Metro Court. Often the alleged victim will then file a Restraining Order (Petition for Order of Protection) in District Court. Although at times both scenarios are based on the same underlying event, this Restraining Order will result in a separate hearing apart from the criminal proceedings in Metro Court.
In order to deal with the Restraining Order, the individual charged with committing an Act of Abuse under the Family Violence Protection Act, will then be forced to go before a Hearing Officer. This Hearing Officer listens to both sides of the story and then determines if it is more likely than not (i.e. by a preponderance of the evidence) that an act of domestic abuse occurred.
Such a finding of abuse will result in an Order of Protection being entered for generally six months to one year. This Order of Protection will prevent the accused party from coming 100 yards from the alleged victim, contacting the alleged victim in any manner, and can carry additional burdens, including restricting one’s right to bear arms while the Order is in place. For more information on Restraining Orders, Click here: Restraining Orders in Albuquerque, New Mexico.
In situations where children are involved, the Order of Protection described above can also have downstream consequences surrounding child custody and parental time-sharing.
When Order of Protections are entered based on a finding of abuse, the assigned Hearing Office in the Domestic Violence Division has jurisdiction for six months to determine issues such as child support, child custody and parental time-sharing of the minor children. For more information on Order of Protections involving children, click here: Restraining Orders Involving Children in Albuquerque, New Mexico.
FILING FOR DIVORCE AFTER A RESTRAINING ORDER AND DOMESTIC VIOLENCE IN ALBUQUERQUE, NEW MEXICO
Unfortunately bad luck usually refuses to stop at two. Because of this fact, the Domestic Violence and Restraining Order can also spill over into a Petition for Dissolution of Marriage (Divorce).
Because New Mexico is a “no fault” state, either person in a marriage can request a Divorce for any reason and at any time – provided that one party to the marriage has lived in New Mexico for six consecutive months. In most situations the reason provided for the Divorce is “incompatibility & irreconcilable differences,” which essentially means that the parties to the marriage have differences that cannot be resolved. New Mexico does not require a finding of abuse, abandonment, adultery, etc. for one to request a Divorce. Additionally, unlike many other states, Albuquerque, New Mexico does not require a “cooling off period” for one to file for Divorce.
Although both Restraining Orders and Divorces are filed in District Court – the Restraining Order is filed in the Domestic Violence Division, whereas the Divorce is filed in the Domestic Relations Division.
The Divorce filed in the Domestic Relations Court generally is assigned to a different Judge than the Hearing Officer assigned to hear the Order of Protection. Although the specific rulings made in the Order of Protection can be modified by the assigned Judge in the Domestic Relations case, any modifications must be specifically requested by motion. Additionally the requested changes must then be approved by the presiding Judge in the Domestic Relations case.
