Defending Family Violence Charges With A Pending Divorce
What happens if you are facing a criminal charge for assault family violence, while you are getting divorced? Our law firm handles both criminal defense, and family law matters. We have seen cases in which one party, let’s say the Husband, is charged with family violence against his Wife, and a divorce is pending.
The first issue that’s going to come up is usually a protective order. If Husband was arrested for assault family violence, then often the judge (magistrate) who sets his bond will issue an emergency order of protection. This order will often forbid the defendant (in our case, Husband) from many things including returning to the residence, threatening the Victim (complaining witness), or possessing a firearm. If you are getting divorced this will essentially ban a defendant from accessing the marital residence.
If you have been arrested and are facing a divorce with a protective order you will want to see understand what options you have to challenge the protective order and to challenge a finding of family violence being entered.
If a judge makes a finding of family violence against you in the protective order, or divorce case, that can and will be used against you for issues of child custody, visitation, spousal supports, and even attorney fees for the other side.
What complicates litigating a divorce while a criminal assault family violence case is pending is the issue of when to testify or not about the criminal case. In a criminal case, you can assert your 5th amendment right to remain silent.
However, in a family case asserting your 5th amendment rights can be used against you. That is, while your right to remain silent can’t be used as evidence to convict you in a criminal case, it can be used to rule against you in the family case. For example, in a custody case a judge can decide that you didn’t testify because you did commit family violence, and therefore you shouldn’t have unsupervised access or possession of your children.
So the decision of how to litigate both cases has to be carefully considered. If you have a family lawyer who does not practice criminal law, then you need to hire a separate criminal lawyer. You also need to make sure these lawyers are able to work together. One advantage of working with our firm is that our lawyers are used to handling criminal and civil cases together. However, lawyers who are not in the same firm may not communicate as effectively.
Now let’s got to the criminal case. How can you defend a criminal assault case with a pending family law case? In a criminal case most prosecutors will want the victim to sign off on any deal for a plea bargain or diversion. This means that the opposing party in a family case (Wife in our example), has the State working for them. This can give the other side a tremendous advantage. For example, if you are a criminal defendant in a family violence case you might want to accept a deal for pre trial diversion.
However, the prosecutor might say that you can’t accept a deal unless the other party in the family case (who might be the victim in your criminal case), agrees. And the other party might not agree unless you give them what they want in the family case. See how much leverage that can give the other party?
Not only do you have another family lawyer working against you, you have a prosecutor who can put you in jail!