In an interesting published Appellate Division case, the Court considered whether the destruction of jointly owned marital property could form the basis of a claim for a Final Restraining Order with “Criminal Mischeif” serving as the predicate act.
After reviewing the general law as to the two-step analysis to determine whether to grant a Final Restraining Order, the Court considered the law as to jointly owned property and its impact on a claim for criminal mischeif.
Ultimately, the Court concluded that the act of either breaking one party’s speakers or breaking down a door in the marital residence could serve as the basis to find that the predicate act of criminal mischeif occurred before determining whether a Final Restraining Order was necessary. In an even more interesting development, the Court determined that the act of breaking another’s speakers on one night, followed by breaking down the bedroom door the next night, did not rise to the level of harassment, as there was no evidence to suggest that the actor had the purpose to harrass.
It may seem obvious to the general public that the act of breaking down a door in the marital residence would be enough to obtain a restraining order; however, this case shows that it is important to discuss your matter with an experienced family law attorney, as the law does not always match one’s expectations.