My assailant was not prosecuted; can I pursue civil restitution?
Yes. A criminal case seeks to determine guilt or innocence, and to hold an offender accountable to the state through punishment. A guilty verdict must be reached beyond a reasonable doubt. For many reasons, a criminal case may not be prosecuted or an offender not found guilty. Regardless of the result of prosecution, if you are the victim of a crime, you may seek civil damages. In a civil case, the court will determine whether the offender or a third party is liable for damages. A determination is made by a preponderance of the evidence, meaning that it is more likely than not that the offender committed the alleged act. This is a much lower standard than in a criminal case.
What kind of damages can I seek in a civil case?
If the perpetrator is found liable in a civil court, there are three different types of monetary damages: economic damages, which pay back actual damages suffered, such as medical bills or lost wages; general or non-economic damages, which are discretionary and compensate for physical and emotional pain and suffering; and punitive damage, which, as the name indicates, seek to punish the offender for misconduct.
Can I maintain my privacy if I file a civil lawsuit?
Yes; there are different ways to protect your privacy. We can keep your name and other personal information out of the public record by filing the suit under a pseudonym, e.g. Jane Doe or John Doe; we can also file the case under seal, or pursue confidentiality agreements with the perpetrator.
How long will it be until my civil case resolves?
It depends. Some cases will resolve relatively quickly, with a settlement that is agreeable to both sides. Other cases will proceed to trial and may entail extensive discovery, e.g. investigations, depositions, and interrogatories. At the outset it is difficult to predict how long a particular case will take to resolve.
There is a criminal case against my abuser already; do I still need a restraining order?
It is a good idea to obtain a restraining order even if there is a criminal case against your abuser. In the criminal case the district attorney, on behalf of the State of California, is in control of the case. You are a victim witness, but not a party and may not even be notified when the criminal protective order is terminated.
In a civil restraining order case, you are the petitioner and are in control of what is requested in the case. In a civil restraining order case you can get child custody, child support, spousal support, pet protection, and even some property distribution orders that you cannot get in a criminal case. You can also renew the civil restraining order for five years or even the rest of your life–something not possible in a criminal case.
If I get a restraining order against my children’s other parent, can the other parent still see the children?
Yes. A restraining order will contain custody and visitation orders tailored to the needs of your family. The court will consider the best interests of the children in making custody and visitation orders. The court can make orders that structure the dates, times, and locations of visitation, as well as orders supervising visitation or exchanges where necessary for the safety of the child or protected parent.
I am scared. Will I have to see the person against whom I am requesting a restraining order in court?
The court cannot make any orders unless the respondent has been personally served. Once he or she is personally served, it is his or her choice whether or not to attend the hearing. If the restrained party is present, you will be in the same courtroom together at the same time. Notify the courtroom deputy if the restrained person, or anyone on his or her behalf, tries to contact you or sit near you at anytime before, during, or after your case. The courtroom deputy is there for your safety. You can also request an escort to your car if you feel you need it.
How long will it take me to get divorced?
It really depends on you, the opposing party, and the complexity of your case. It can take anywhere from 3 months to 3 years or more.
I never worked outside the home. How will I survive if I get divorced?
The law recognizes that your work inside the home adds value to the marriage. For this reason, the income earned from working outside the home is distributed to both parties upon separation. The court has the power to order your spouse to pay money each month to meet your financial needs. This is called “spousal support” for married couples, and “partner support” in domestic partnerships. Some people refer to it as “alimony.” It can be a simple process if the person who worked outside the home is an employee and receives a straightforward salary. It can be more complex and even require a trial if the source of income is from a personal business, stock options, bonuses, etc.
The factors the court considers when making a support order are listed in California Family Code section 4320. It takes into account the marital standard of living, among other things. Normally, you can receive support for half the length of the marriage for a marriage lasting less than 10 years. For a marriage lasting more than 10 years, there is no such limit, though the statutory goal is that the supported party should become self-supporting within a reasonable period of time. The lawyers at ADZ Law, LLP can help you quickly obtain the most favorable order.
Why would I choose mediation over filing a court case?
Mediation is a process dictated by the parties. In mediation, there is much more communication between the parties than in a litigated case, which can lead to an ultimate and permanent resolution of “old issues.” It can be much less costly than litigation, including reducing attorney’s fees, time in court, filing fees, litigation costs, etc.
If we reach an agreement is it legally binding?
Yes, if mediation concludes successfully, you and the other party will sign an agreement that will then be filed with the court.
What if we don’t reach an agreement?
If mediation is unsuccessful, you are free to litigate the matter further in court. All aspects of the mediation process remain confidential and your mediator cannot be called to testify.
