Cannot Use Restraining Order as a Bargaining Chip

In the recently-published case of J.S. v. D. S., the New Jersey Appellate Division considered an appeal in which the parties had agreed, as part of the global settlement of their divorce, to the continuation of a Final Restraining Order (“FRO”). In an interesting decision, the Appellate Division rejected the parties’ attempt to continue the FRO despite the fact that: (a) they had agreed to continue the FRO; and (b) they had even agreed to dismiss the appeal.

The Appellate Division reasoned as follows:

“[I]t is not uncommon for domestic violence plaintiffs to seek dismissal of their actions either before or after entry of an FRO. In those instances, the Act obligates a trial court to examine the plaintiff’s reasons for seeking dismissal by conducting a searching inquiry into the plaintiff’s understanding of the consequences for the purpose of ascertaining whether, among many other things, the plaintiff has knowingly and freely sought dismissal. As part of this inquiry, courts must ensure dismissal is not part of an impermissible swap of promises. Public policy precludes the entry, continuation, or dismissal of an FRO as a bargaining chip in the settlement of other disputes. Consequently, our appellate courts must also be wary of settlements in such matters.

We are also mindful that the Act imposes considerable obligations on law enforcement and that an FRO is not merely an injunction entered in favor of one private litigant against the other. A violation of an FRO has a tendency to trigger law enforcement involvement and may ultimately lead to criminal prosecution. And the entry of an FRO imposes continuing obligations upon the Judiciary, which is required by the Act to “establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them.” The potential in such matter for the future involvement of the courts, law enforcement, and prosecutors, counsels against blithely acceding to the perpetuation of a groundless FRO.” [J.S. v. D.S. (App. Div. 2016) (citations omitted).]

Situations in which Plaintiffs agree to voluntarily dismiss their Temporary Restraining Orders (“TROs”) rather than proceeding through trial are exceedingly common. Although the decision focused on the entry of a Final Restraining Order rather than the dismissal of a Temporary Restraining, the language the Court used specifically referenced “dismissal” as well (at least of an FRO). The logic employed by the Court, however, seemed to rest on the fact that continuation of an FRO puts significant additional strains on the Courts and law enforcement. Thus, it is unclear at this point what impact the Court’s decision will have on future negotiations while a domestic violence action is pending, but it has the potential for wide-reaching effect.