Domestic Violence and Defining Who Is A Household Member

Domestic Violence
Domestic Violence

When most people think about the issue of domestic violence, they first think in terms of acts against a wife, a husband, a boyfriend or a girlfriend.  People with a little more knowledge of this area of law will also know that it includes family members living with the perpetrator of the domestic violence.  These blood-related family members include a mother, father, sister, brother, cousin and so on.  So this second category includes relatives in a non-sexual and non-dating relationship.

Even broader, the household relationships that may be included in a domestic violence scenario also include non-blood relatives who are also not romantically involved.  So for example, the brother-in-law who lives with his wife’s family may be a victim or perpetrator of domestic violence.  You may find yourself a victim of your live-in mother-in-law’s aggression.

Even a non-relative can be a party in a domestic violence matter.  Therefore, if a friend lives with you, that situation can qualify.  The cast of “friends” living together, even when not romantically involved, can qualify.  But it gets even broader.

Case law tells us that college roommates, living together in a dorm room, may qualify as parties in a domestic violence matter.  That relationship lasts one year or less, but still satisfies the “household” requirement of domestic violence law.  But a 2011 Appellate decision further expands the definition of “household member”.  In the case S.Z. v. M.C., the appellate court afforded protection against someone who was only a temporary guest in the victim’s home and that temporary guest did not even reside in the victim’s home at the time that the alleged conduct occurred.

It is clear that the definition of who precisely is a “household member” has been greatly expanded over the course of time.  The serious implications as to the heightened behavioral caution that must be adhered to between people who even temporarily reside together cannot be ignored.

Boilerplate Language in a Matrimonial Settlement Agreement

Every well-drafted Matrimonial Settlement Agreement (“MSA”) contains what seems like endless pages of paragraphs that clients often gloss over, called ‘boilerplate language’.  I include this in each MSA that I draft.  Some attorneys include little of the language.  When agreements are verbally placed “on the record” in Court, much of the boilerplate language is actually ignored.

But the boilerplate language should not be ignored and it often has an immense impact down the road.  For example, a “Waiver of Discovery” paragraph will generally preclude a person from later claiming that their spouse did not supply the financial data that should have been supplied. 

Another example is a paragraph included in which a person representing himself acknowledges that he could have been represented by counsel but  is satisfied that he has represented himself.  This could preclude him from later arguing that he did not understand his rights or even the MSA language itself. 

I mention the above because it has been my frequent experience to consult with someone who complains that he either did not understand the agreement or that he thought he agreed to something other that what is the clear language of the MSA.  As the saying goes: the devil is in the details.  In an MSA, the details are not merely filler.

Court Award of Counsel Fees Against a Bad Faith Litigant When It Is Unlikely Payment Will Be Made

It sometimes occurs that one spouse is obligated to defend him/herself against a continuous barrage of bad faith motions from the other spouse. This may be especially the case where the bad faith party is not employed or has few assets. Defending these motions can be expensive and frustrating.
However, even if it appears unlikely that the good faith spuse will ever collect a possible counsel fee award, it is the Court’s responsibility to order a counsel fee award if that award is deserved. To do otherwise would be tantamount to enabling additional frivolous bad faith applications. At least a signal would be sent that bad conduct ultimately has a cost. Down the road, that spouse may be forced to pay for their misdeeds.

Counsel Fee Awards – Settlement Drafting Tip

Litigants can agree in their Matrimonial Settlement Agreement that specific counsel fees will be awarded to one party if the other party violates certain aspects of the settlement agreement.  In such a scenario, as a general rule, the courts will seek to enforce that agreement.  Judges have wide latitude when interpreting a domestic relations agreement (such as a Matrimonial Settlement Agreement).  However, if it was the intent of the parties to promote a stable agreement by requiring reimbursement by the party who was unnecessarily forced to pay an attorney, a judge is likely to order that the offending party pay counsel fees to the other.