When a party obtains a domestic violence Final Restraining Order (“FRO”), they are typically entitled to an award of counsel fees as compensatory damages. As often is the case, when one party obtains a Temporary Restraining Order (“TRO”), the other party will either reflexively, and sometimes at the advice of counsel seek their own TRO so that there are cross-complaints that the court has to deal with at the FRO hearing. Why is this done? Often to get the first party to drop the TRO in favor of civil restraints.
If one party obtains the FRO and defeats the cross-complaint, are they entitled to counsel fees for the entirety of the matter, or just as it related to their FRO? The answer typically is no unless the court finds that the cross-complaint is frivolous, retaliatory or made in bad faith. In fact, that is the standard for anyone who is defending a TRO who seeks counsel fees if they are successful. In more than 30 years of practice, I have gotten this relief for a client two times.
No there are times when an incident occurs and either both parties get a TRO on the spot, after hours, from a Municipal Court Judge, or one party gets a TRO and the other party does not. In one case that I had many years ago, the defendant filed a cross-complaint alleging rape, more than a month after the TRO was issued and even longer after the alleged act. Often in those cases, the person who was denied will go the Superior Court on the next business day and get a TRO of their own if it is remotely meritorious.
But what happens when the second party waits days, weeks or months to seek a TRO? Very often in those cases, the second TRO is granted, even if dubious, with the understanding that all of the evidence can be presented and sorted out at the final hearing. However, is this fair? I suppose that it is only fair if trial judges will ultimately deem the cross-complaint to be frivolous, retaliatory or made in bad faith. However, in my experience, this seldom occurs, or at least does not occur as often as it should.
This issue, as well as the issue of how counsel fees for a domestic violence matter should be calculated, came up in the unreported (non-precedential) case of M.V. v. L.V., which was released on November 12, 2025.
In that case, plaintiff was granted an FRO and successfully defended a cross-complaint. Plaintiff sought an award of $30,347 in legal fees. Despite finding that the attorney’s hourly rate was reasonable and that plaintiff incurred damages caused by defendant’s actions, the trial court denied fees because the request included fees for the defense of the cross-complaint, which were not broken out separately. The court also questioned whether all of the fees were reasonable and necessary – many related to reviewing police body camera footage.
Plaintiff refiled seeking $28,825.50 in fees, but the court only granted a flat amount of $6,000. In limiting the fees, the trial court made the following ponderous statement:
“[A] final restraining order is a summary proceeding and as the definition states, it should be a succinct proceeding done without delay, for the speedy disposition of the matter. [FRO] hearings are generally scheduled within a short period of time after a [TRO] is entered. Attorneys do not and should not need an extraordinary amount of time to prepare for
such a hearing.
While it is true that FRO hearing are technically summary proceedings, they are evidentiary hearing where due process and the Rules of Court and Evidence apply. The police are frequently subpoenaed as are other people. Sometimes there are technical issues regarding the use of hidden cameras, listening devices, tracking devices, spoofed emails or texts, cell tower information, etc. Moreover, like any trial, preparation is advisable, if not necessary.
In this case, the court criticized time spent in preparation of obtaining video evidence, reviewing police bodycam videos and even waiting in court for the matter to proceed.
Plaintiff appealed arguing that the trial court failed to explain how it calculated the $6,000, and the Appellate Division agreed and reversed.
The Appellate Division started it’s analysis noting that an award of fees is authorized by the statute. The Court goes on to provide the rationale for the award, as follows:
“This provision serves a critical public policy goal: “to avoid a chilling effect on the willingness of domestic violence victims to come forward with their complaints.” M.W. v. R.L., 286 N.J. Super. 408, 411 (App. Div. 1995). “It would be inimical to the [PDVA] to deny a victim an award of reasonable attorney’s fees and costs incurred in successfully defending against a challenge to a[n FRO] . . . .” Grandovic v. Labrie, 348 N.J. Super. 193, 197 (App. Div. 2002). Fees and costs in a domestic violence action are awarded as statutory damages. Therefore, the award is “not subject to the traditional analysis” for an award of fees in family-related claims under N.J.S.A. 2A:34-23 and the court is not obliged to consider the parties’ financial circumstances. McGowan v. O’Rourke, 391 N.J. Super. 502, 507 (App. Div. 2007) (quoting Schmidt v. Schmidt, 262 N.J. Super. 451, 453 (Ch. Div. 1992)); see also Wine v. Quezada,
379 N.J. Super. 287, 292 (Ch. Div. 2005).
Under the PDVA, counsel fees maybe be awarded if they are: (1) “a direct result of the domestic violence”; (2) reasonable; and (3) accompanied by a certification under Rule 4:42-9(b). McGowan, 391 N.J. Super. at 507 (quoting Schmidt, 262 N.J. Super. at 454; see also Wine, 379 N.J. Super. at 291).
Noting the traditional deference to the trial court on fee issues, the Appellate Division was constrained to reverse because the calculation “did not add up.”
Plaintiff also requested the Appellate Division to expand the law to include successfully defending against complaint as followed in certain unreported Appellate Division decisions, but the court declined to do so. The court again noted that the entitlement to fees defending a TRO requires a party to be an aggrieved party under the frivolous litigation statute.
In this case, the trial judge found insufficient evidence that the cross-complaint was frivolous, retaliatory or made in bad faith and though defendant was less than credible, “… that finding alone
does not satisfy the threshold required under the frivolous litigation standard to permit the recovery of attorney’s fees M.V. expended to defend against these claims.
If there is a takeaway from this, more attention should be spent at trial to prove that the cross-complaint was retaliatory or made in bad faith.
Either way, this case is a good primer on the issue of counsel fees in bringing or defending a domestic violence matter.
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