Defendants accused of domestic violence who prevail at trial are generally not entitled to reimbursement for the counsel fees he or she incurred to defend against the domestic violence complaint. When the legislature enacted the Prevention of Domestic Violence Act, it “only only made provision for counsel fees for victims, and not for prevailing parties.” M.W. v. R.L., 286 N.J. Super. 408, 411 (App. Div. 1995).
Although defendants who prevail in domestic violence proceedings are not entitled to counsel fees pursuant to the Prevention of Domestic Violence Act, this does not mean that a prevailing defendant may not be entitled to an award of counsel fees under another court rule or statute. Id. In fact, defendants who prevail in a domestic violence proceeding may be entitled to an award of counsel fees under New Jersey’s frivolous litigation statute, N.J.S.A. 2A:15-59.1(a).
N.J.S.A. 2A:15-59.1(a) provides that a party who prevails in a civil action, as a defendant or as a plaintiff, “may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceeding or upon final judgment that a complaint, counterclaim, cross claim, or defense of the non-prevailing person was frivolous.”
To prove that a claim made by the non-prevailing party was frivolous, the defendant must prove that; (1) the claim was made or continued in bad faith solely for the purpose of harassment, delay or malicious injury; or (2) that the non-prevailing party knew or should have known that the claim was without any reasonable basis in law or in fact, and could not be supported by a good faith argument for an extension, modification, or reversal of existing law. N.J.S.A. 2A:15-59.1(b).
In domestic violence matters, if the defendant prevails at trial, generally he or she will not be entitled to the counsel fees incurred in connection with defending the action. However, if a defendant is able to prove that the plaintiff knowingly made false accusations in his or her complaint for Domestic Violence, defendant may be entitled to an award of counsel fees for having to defendant the frivolous claim.
In conclusion, prevailing defendants in domestic violence matters on occasion may be awarded counsel fees pursuant to the frivolous litigation statute. However, trial courts often have no choice but to decide whether an act of domestic violence occurred based only upon each party’s testimony, where only the parties were present at the time an incident occurred. Even if the alleged victim makes a false accusation of domestic violence, the burden would be on the defendant to prove that the alleged victim perjured him or herself or that the complaint was filed in bad faith. As such, the key to prevailing on any factual issue before the Court is whether you can prove it. If you cannot support your position with sufficient proof you will not prevail, even though you may know in your heart what actually occurred.
Contact an Experienced New Jersey Domestic Violence Lawyer at Lyons & Associates
If you or someone you know has a question about his or her rights as they relate to domestic violence, then please call the skilled attorneys at, contact us by e-mail or call our office at 908-575-9777. The attorneys at Lyons & Associates have substantial expertise in such matters as this office exclusively focuses its practice on family law and family law related issues.
Written by: Mark T. Gabriel, Esq.