Marital Contretemps or Domestic Violence?
Mar 4, 2026 | Written by: | Share
Marital contretemps can be defined as or referred to as minor arguments, bickering, or disagreements between couples that do not rise to the level of domestic violence. It often describes routine marital strife, such as disputes over children or property during a divorce, that lack the severity or fear-inducing nature of true abuse.
In most divorce cases, a certain level of minor arguing is “normal” or even expected. However, when a litigant applies for a restraining order in a divorce, it is incumbent upon the trial judge to decipher when the issues are truly minor versus when a restraining order is needed to protect a party from further harm. Denying a restraining order because there is a pending divorce is not a legal basis for such a denial. Doing so ignores the dangers domestic violence can impose upon families, even when wholly inconvenient, as the judge in the recent Appellate case of S.M.T. v. S.A. described.
In the case of S.M.T. v. S.A., when the trial court (wrongly) denied the plaintiff’s final restraining order (FRO) and dismissed her testimony of physical abuse, sexual abuse, and coercive control as “marital contretemps,” there was no alternative but for her to file an appeal. The Appellate Division disagreed with the trial court’s ruling and addressed the significant errors of the trial court in reaching that decision. The NJ Appellate Court defined and explained that culture, religion, faith, etc., are not relevant considerations in domestic violence cases, and reiterated that marital status has no relevance to sexual assault. In 2026, it is hard to believe that this had to be explained to the trial court by the Appellate Division, but the below analysis makes clear the trial judge simply got this wrong.
The trial court determined that an incident on March 13, 2024, was a prior act of simple assault S.A. committed upon his wife. Notwithstanding, the court denied S.M.T. an FRO, stating: “[A]fter a thorough review of the second prong of [Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)], I do not find that a final restraining order is necessary to protect [S.M.T.] going forward. The issues that she's concerned about and the issues of present and past domestic violence will be addressed, I think, with some regulation concerning custody, parenting times.”
The trial court also noted: “[T]he advantage that the parties are seeking, particularly the wife is, and the other forum is, of course, the FM action. She had made a decision to divorce the husband. That comes with a lot of very difficult issues: who stays, who goes, who pays, who doesn't. And the fear that the [c]ourt has and that the Supreme Court in . . . [J.D. v. M.D.F., 207 N.J. 458 (2011)] has is that the domestic violence will all come to be used to seek an advantage.”
The trial court found the majority of S.M.T.'s allegations of physical abuse, sexual abuse, and coercive control amounted to "marital contretemps" that did not merit a restraining order.
The Appellate Division reversed the trial court’s ruling, concluding. “there was a history of domestic abuse and an immediate danger to the plaintiff. Id. at 418 (citing N.J.S.A. 2C:25-29(a)(1) to (2)). Indeed, it would be rare for proven physical assault to be deemed mere marital contretemps, and we found no reported decision where marital contretemps was relied upon as a basis for denying a restraining order where physical assault was a proven predicate act.”
The Appellate Division went on to clarify that, “A domestic violence victim's marital status is irrelevant as to whether the alleged victim consented to a sexual act. S.M.T., whom the court found credible, proved she was a victim of sexual assault by a preponderance of the evidence. Therefore, S.M.T. met the first prong of Silver. Instead, the court stated: "It's clear from the contentions that it's somehow recognized by [S.M.T.] that [S.A.] feels he has a right to exert certain authority over her, and again, the [c]ourt doesn't pretend to understand the actual tenets of the faith or culture in that regard." Tenets of faith and culture are not relevant as to whether acts of physical or sexual assault occurred.”
Effective January 8, 2024, the Prevention of Domestic Violence Act (PDVA) was amended to include coercive control among the statutory factors courts must consider when determining whether to issue an FRO. N.J.S.A. 2C:25-29(a)(7). Coercive control is not among the predicate acts enumerated in the PDVA; rather, it is analyzed pursuant to the secondary analysis of Silver once a predicate act of domestic violence has been proven.
Our courts have long recognized controlling behavior as a dangerous form of domestic violence that threatens the safety of those subjected to it. See Cesare, 154 N.J. at 397 (describing domestic violence "as a 'pattern of abusive and controlling behavior injurious to its victims'" (emphasis added) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995))).
The Legislature's recent amendment of the PDVA to include coercive control of a secondary analysis factor in determining whether an FRO should be issued reflects a renewed intent to prevent this type of domestic violence.
In this case, the trial court failed to make findings regarding the allegations of coercive control in its analysis of prong two. S.M.T. detailed S.A.'s acts of coercive control in limiting her travel, controlling the family's finances and her access to money, surveillance by various electronic means, and depriving her of sleep using lights, television noise, and spilling water on her. This testimony supports a finding that S.A.'s acts of coercive control required issuance of an FRO.
This case is an important reminder about what constitutes domestic violence and coercive control. It is a painful reminder that the trial court can sometimes misunderstand and reach an incorrect conclusion, however, it is important to note that there are remedies available, such as an appeal, which proved prudent here.
What this opinion does not tell us is what happened to S.M.T. from the time of the domestic violence hearing in or around Spring 2024 until this Appellate opinion was decided in February of 2026. In the two years it took for this appeal to be decided, what happened to S.M.T., who was denied a final restraining order? The very slow wheels of justice do not move at a pace to accommodate real life, and while this opinion has great academic value, this is an example of the realities that the system is not equipped to address and protect against.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2021, to the NJ Super Lawyers list in 2023, 2024, and 2025, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Diana for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.