A published New Jersey case that discusses this issue is J.C. v. M.C.
Can I file for divorce if my spouse has a domestic violence restraining order against me?
Yes. The filing of a divorce complaint or other court actions does not, by itself, violate a domestic violence restraining order. Either party has a right to access the court to terminate a marriage. The court in J.C. v. M.C. said, “[n]othing in the domestic violence act even remotely reflects a legislative intent to block anyone, victim or defendant, from seeking a divorce against the other party.”
However, you should be very careful to avoid filing papers with the court that may be viewed as harassing the spouse who has a restraining order against you. Litigation that is not needed to resolve a genuine legal issue may be viewed by the courts as frivolous. “Frivolous” means a case that has no legitimate legal issue. This can stem from a case that is filed after the issue was already decided by a court. A frivolous case is one that a judge has no legal authority to decide. For example, asking the court to stop your spouse from dating someone else is not supported by any law and would be considered frivolous.
Preparing a divorce complaint requires you to describe facts about genuine legal issues. False, mean-spirited, or unnecessarily hurtful statements may be viewed by the court as harassing the spouse who has a restraining order against you. It is best to stick to the facts and avoid what may be seen as name-calling in your papers.
If you file papers with the court that are viewed as harassing, you can be charged with violating the restraining order. If the court finds that abusive litigation tactics are being used, it can impose sanctions and even require that future court papers be reviewed by a judge before they can be sent to the other party.2
How do I file for divorce?
Legal Services of New Jersey (LSNJ) has published Divorce in New Jersey—A Self-Help Guide, a self-help guide on filing for divorce. You can also order a digital PDF of the guide with all of the forms at LSNJ's on-line store. See our Divorce section to find out more about the procedure for filing a divorce and related legal issues.
What is service of process?
If you have filed a divorce complaint, or any legal action, you are required to make sure that the other party is given a copy of the divorce complaint and related legal papers. This is called “serving” the other party or “service of process,” and court rules require that it be done in a specific way. The court rules also require you to provide evidence to the court that you completed service in accordance with those rules.
Personal service, that is hand delivery, is considered the best form of service and should be done by the sheriff’s office. If the other party has an attorney, you may serve him or her by mailing the papers to that attorney. Some other ways to complete service are described below.
Is it okay to serve a divorce complaint on my spouse who has a domestic violence restraining order against me?
Yes, if you do it the right way. The J.C. v. M.C. case says, “[s]o long as the [divorce] complaint is served by a legally designated and appropriate third person such as a sheriff’s officer, deputized process server, or other legally approved third person, rather than by the domestic violence defendant personally, such action does not violate the terms and spirit of the [Prevention of Domestic Violence] Act.” (emphasis added). This means that if your spouse has a domestic violence restraining order against you and you know where your spouse lives (for example, if your spouse continues to live in the marital home), then you are within your rights to serve the divorce complaint by a sheriff’s officer hand delivering the papers to your spouse. The sheriff’s officer hand delivering the papers is not a violation of the restraining order as long as the papers are not harassing in nature. (See Can I file for divorce if my spouse has a domestic violence restraining order against me? about avoiding frivolous litigation and false or mean-spirited statements in a divorce complaint.)
Do not try to hand deliver the divorce complaint and related papers to your spouse yourself. This will not count as good service and it will be a violation of the restraining order. Use the sheriff’s officer to serve the papers, or mail them to your spouse’s attorney’s office (if your spouse currently has an attorney).
A problem may arise when another form of service is attempted. When there is no restraining order between spouses, one can agree to accept service of the divorce complaint and related papers by regular mail. It is different when there is a restraining order in place. Just asking your spouse who has a domestic violence restraining order against you if he or she is willing to accept service by mail may violate the terms of the restraining order as a form of prohibited contact or communication. Asking someone else to ask your spouse may also violate the restraining order. So, if your spouse has a domestic violence restraining order against you, do not try to send the divorce complaint and related papers directly to your spouse by mail. You should not communicate with him or her directly.
If I don’t know where my spouse lives, is it ok to look for my spouse who has a restraining order against me?
No. The rules of court require the person filing the divorce complaint to take steps to find their spouse if his or her residence is unknown. This is called “diligent inquiry.” However, it is very important that you avoid invading the privacy of a spouse who has a domestic violence restraining order against you. Do not try to find your spouse.
The J.C. v. M.C. case warns against possibly violating a restraining order by trying to find where your spouse currently lives. “[A] violation may occur when, before service, a domestic violence defendant [chooses on his own to start] efforts to locate, confirm and compromise the confidentiality of the protected party’s whereabouts, even for the purported purpose of … service of process.”
Then how do I serve my spouse?
The case recognizes that spouses who have a restraining order against them and do not know where to serve their spouse are in a tough situation. The case, J.C. v. M.C., describes another way to complete service. It says that a practical option for the divorce complaint and related papers to be provided to the spouse who has a domestic violence restraining order against you “without violating the party’s confidentiality of location, is for the court to enter an order directing the court’s domestic violence unit to forward the summons and complaint to the spouse via certified mail to his or her last known address on file in the confidential records of the [court’s] domestic violence unit.” That case also discusses what to do if the last known address for your spouse that is on record in the court’s domestic violence unit is no longer where your spouse lives. It says that the domestic violence unit should use other forms of contact information, like a cell phone number or email address, to try to communicate with the spouse to find out his or her current mailing address and then send the papers through certified mail or, as a last resort, to send a scanned copy of the papers to your spouse’s email address.
Will the court take care of serving my spouse automatically?
No. Courts will NOT automatically follow this procedure for service, even though a published case says that this is a good way to serve a spouse when there is a restraining order and the spouse’s current address is unknown to you. If (1) your spouse has a restraining order against you, and (2) you do not know where your spouse currently lives, you must make a motion to the court to ask for a court order for “alternate service.” Alternate service means giving notice to your spouse in a way that is different than what is required by the rules of court.
How do I file a motion?
To file a motion, you can use the New Jersey Judiciary’s Pro Se Motion Kit: How to Ask the Court to Change/Enforce an Order in Your Case, or Request Another Related Action in Your Case. The motion kit consists of several parts, including a certification and a notice of motion.
In the certification, you explain the facts that support your request for alternate service. Specifically you should include a statement that (1) your spouse has been granted a domestic violence restraining order against you. Include the name of that case, the date of the order, whether it is temporary or permanent, and the docket number (beginning with “FV-”); and (2) that you do not know where your spouse currently lives.
In the notice of motion, you will explain the “relief” you want. (Relief means what you want the court to do.) You should state that you want the court to permit alternate service in accordance with J.C. v. M.C., 438 N.J. Super. 325 (Ch. Div. 2013). Then be more specific, that you want the court to permit alternate service via certified mail from the court’s domestic violence unit to the last known address in its records for your spouse. You should also say that if the certified mail fails, that you want the court to direct the domestic violence unit of the court to make efforts to contact your spouse using any cell phone number and email address for your spouse in their records to get a current mailing address and re-send the papers to your spouse via certified mail. You should then ask that if your spouse is unwilling to provide a current mailing address, but the email address in the records of the domestic violence unit is confirmed as being active, that the court permit alternate service by the domestic violence unit scanning the papers and forwarding them to your spouse’s current email address.
Follow the directions of the Pro Se Motion kit to complete all of the papers in the kit and file them with the court. Note that you will not be sending a copy of the papers to your spouse, because you do not know the current address and this motion is asking the court to address that issue.
Note to spouses who have been granted a domestic violence restraining order: The courts are making efforts to protect the privacy and confidentiality of your location. If you do not want your spouse to know your address, make sure the domestic violence unit of the court that granted your restraining order has current information about your mailing address, phone number, and email.
If you are filing for divorce or you have received a complaint for divorce filed by your spouse, you should include a valid mailing address, either a post office box number or another address, where you will receive mail regarding the divorce action (or other court matters). This does not have to be your home address, but it must be a reliable mailing address.
To ensure your safety, you should consider obtaining an alternative address through the New Jersey Address Confidentiality Program (ACP), which is a program designed to help victims of domestic violence who have relocated for their safety. The program limits access to information that would reveal your new location and allows you to receive first-class mail by way of the New Jersey Department of Community Affairs. For further information on the ACP or to register for the program, call 1-877-218-9133 or see Address Confidentiality Program (from the NJ Department of Children and Families). You may also register as a participant in the program by contacting your county domestic violence program. For the address or phone number of your county domestic violence program, call the New Jersey Coalition to End Domestic Violence at 1-609-584-8107 or visit their website.
1. The cite to this case is 438 N.J. Super. 325 (Ch. Div. 2013).
2. Parish v. Parish, 412 N.J. Super, 39 (App. Div. 2010).
This information last reviewed: Jul 18, 2018