Court System Basics
Why do we have a Preparing for Court – By Yourself section?
A high percentage of domestic violence survivors face the court system on their own. The court process can be very challenging, even for those who have experience in court. Some survivors choose not to seek help from the court at all because the court process intimidates them, they don’t understand the laws, or they fear the unknown. However, not going to court may mean missing out on life-changing protections and other outcomes that could improve a survivor’s situation. We designed this section to help people who have no court experience, or very little experience with the court system, navigate what can be a very complicated process. Knowledge is power, and when you know what to expect and have some tools you can use when involved in litigation with an abusive partner, you could have a better chance of getting a favorable outcome.
The laws of each state can vary greatly in some ways and might be very similar in other ways. We tried to make this section as general as possible so that a person in any state or territory might benefit from it. If you still have questions about your case after reading this section, we provide legal information and referrals on our Email Hotline.
What does it mean to be a pro se litigant?
A pro se litigant, or self-represented litigant, is someone who does not have a lawyer to represent him/her in a court case. Some court cases are straightforward and you may be able to get through the process without a lawyer representing you. Small claims court, for example, is designed with simplified procedures and requirements so that you should be able to present your claim to the court without a lawyer. Other cases, though, are more complex and might require motions, discovery, or other legal procedures to get through them successfully. Divorce cases can fall into this category if there are children, property, assets, or other issues that need to be resolved. Because divorces can be complicated and involve important legal rights, it might be worthwhile to consult with a lawyer if you are thinking that you might file for divorce. You can find information about free and paid lawyers on our Finding a Lawyer page.
Why does it matter if I do or don’t have a lawyer?
A lawyer’s knowledge of the laws and rules of evidence can be very important when navigating the court process. A lawyer should be able to explain what you have to prove in your case to get the outcome that you want, warn you of potential pitfalls, and discuss the probability of your success, among other things. Therefore, if you are able to get a lawyer, preferably one who is knowledgeable about domestic violence, you should consider working with a lawyer for your legal case.
Our Choosing and Working with a Lawyer page has tips on questions you can ask a lawyer during your first meeting to see if the lawyer would be a good fit for your case. However, if you are getting a lawyer from a non-profit organization or if the court appoints a lawyer, you may not have the luxury of interviewing multiple lawyers to find one who is a good fit; you may have to work with whoever is assigned to you.
Sadly, the reality is that many people cannot afford a lawyer to represent them and legal services organizations still do not have the resources they need to represent everyone who applies for their services. If you are not fortunate enough to be able to get a lawyer to represent you, either free or paid, you should strongly consider at least consulting with one before deciding on a course of action in your case. In addition to legal services organizations, there are also legal referral services operated mostly by state bar associations that usually offer low-cost initial consultations with a lawyer. You can find information about free and paid lawyers on our Finding a Lawyer page.
If I represent myself in court, how will the judge treat me?
You are generally allowed to represent yourself in court if you so choose, except in some very limited circumstances. If you do choose to represent yourself in court some judges may be more lenient with you but others may hold you to the same standards as a lawyer during your court case and might even have unintentional bias against self-represented litigants. In other words, the judge may expect you to know:
- what the purpose of the different court appearances and conferences are in your particular case;
- whether or not discovery is allowed;
- what motions may be filed;
- how to conduct a trial in general and, specifically, how to introduce evidence, question witnesses, and object to unfavorable evidence.
This may sound like a lot to take in, but you can review the other pages in this Preparing for Court – By Yourself section for basics on these areas of trial practice. Most states also have materials for self-represented litigants on their court websites and some might even have self-help centers in the courthouse where you can go to get brief advice or help with filling out court forms.
Some cases are especially complicated and involve important legal rights. In those cases, it is important to have a lawyer. If any of the following are issues in your case, then you should strongly consider hiring a lawyer to help you, if possible:
- parental kidnapping;
- contested divorce;
- contested custody;
- immigration; or
- the other party has a lawyer.
How can I do legal research?
In addition to reading your state’s rules of evidence, you may want to do additional research to prepare for your case. Here are some ideas on how to proceed:
- Go to a law library, either at the courthouse or at a local law school. Many courthouses have libraries, which will have other cases that have been decided (known as “case law”), statutes, and secondary source materials. A law librarian may be able to help you in your research.
- See if your courthouse has an office for the self-represented (“pro se” litigants). These offices are designed to provide information, instruction, and forms for people who are representing themselves in court.
- Look for online tools that have access to case law or articles on legal topics, such as Google Scholar (WomensLaw.org does not endorse the services of Google Scholar – we provide this information for your knowledge only).
Overview of Civil vs. Criminal Law
The legal system is divided into two areas: civil law and criminal law. Separate courts govern (control) these two areas of the law.
One of the most confusing things about the legal system is the difference between civil cases and criminal cases. In domestic violence situations, there may be both civil and criminal cases occurring at the same time as a result of the same violent act. You may want to pursue both civil and criminal actions for maximum protection. The major differences have to do with who takes the case to court and the reason for the case.
In a civil domestic violence action, you are asking the court to protect you from the person abusing you. You are not asking the court to send that person to jail for committing a crime. However, if the abuser violates the civil court order, he may be sent to jail for the violation. In a civil case, you are the person bringing the case against the abuser and (in most circumstances), you have the right to withdraw (drop) the case if you want to. The restraining orders in every state that we refer to in the Know the Laws section are under the civil law system.
The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, theft, etc. A criminal complaint involves your abuser being charged with a crime. In a criminal case, the prosecutor (also called the district attorney) is the one who has control over whether the case against the abuser continues or not. It is the county/state who has brought the case against the abuser, not the victim. It is possible that if you do not want the case to continue (if you do not want to “press charges”), the prosecutor might decide to drop the criminal charges but this is not necessarily true. The prosecutor can also continue to prosecute the abuser against your wishes and could even issue a subpoena (a court order) to force you to testify at the trial.
Rules of Evidence
Evidence is information you can show the judge or tell the judge about. This can include both:
- physical evidence (like texts, photos, medical reports, etc.); and
- verbal evidence (like things you or another witness saw or heard and can testify about).
However, not all evidence is allowed in court. In state courts, which is where the types of cases in the Know the Laws – By State section would be filed, the state rules of evidence will determine what evidence can be used. In federal court, which is where immigration matters are heard, the Federal Rules of Evidence determine what evidence can be used. State rules of evidence are often very similar to the Federal Rules of Evidence, but each state may have different rules for their courts. Some states do not have formal rules of evidence, and instead rely on past court decisions (precedent). Below, you can find your state’s rules of evidence if your state has formal rules.
WomensLaw.org is not affiliated with the websites that are linked to below, and we cannot say for sure if the information contained on them is accurate. You may be able to find the most up-to-date rules of evidence at your local law library, which may be housed within a local public library or courthouse. In addition, many law schools open their library to the public, and you may want to call the nearest law school to see if this is an option.
We understand the rules can be very difficult to understand. WomensLaw will soon add a section explaining some common rules of evidence. Please check back soon for that page! WomensLaw will link to it here when it is complete.
AL | AK | AZ | AR | CA | CO | CT | DC | DE | FL | GA | GU | HI | ID | IL | IN | IA | KS | KY | LA | ME | MD | MA | MI | MN | MS | MO | MT | NE | NV | NH | NJ | NM | NY | NC | ND | OH | OK | OR | PA | PR | RI | SC | SD | TN | TX | UT | VT | VA | VI | WA | WV | WI | WY
New Mexico compiles their rules, but does not allow direct linking. You can find New Mexico’s Rules of Evidence by going to the New Mexico Compilation Commission website, expanding the table of contents (TOC) on the left side of the page, and selecting “Rules of Evidence” from the dropdown menu.
The Virgin Islands are “governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.–Amended Sept. 13, 1975; Oct. 14, 1994, eff. Nov. 16, 1994.” Please see the Superior Court of the Virgin Islands’ website for more information.
Here you will find definitions for common legal terms. You can scroll through or use the quick navigation bar to choose the first letter of the word you are looking for.
abuse (domestic abuse, domestic violence, family abuse, family violence) – Each state defines abuse or domestic violence differently. For the legal definition in your state as it applies to restraining orders, please select your state from our Restraining Orders page.
acquit – When a judge or jury decides an accused person is “not guilty” of a crime.
adjudication – The entry of a decree or an order by a court; the legal process of resolving a dispute.
alimony – Money or other financial support awarded to a spouse in a divorce action for his or her separate support. lt is usually awarded only where one spouse has been dependent on the other or has less earning power than the other and for a temporary period of time. Also called spousal support or maintenance.
annulment – A court declaration that a marriage is invalid or nonexistent. Courts annul marriages where fraud, bigamy, impotence, or another serious problem has occurred. It means that the marriage never occurred legally. Church annulments are not the same as legal annulments.
appeal – The process of going to a higher court to review the decision of a lower court.
arraignment – The initial court proceeding, in which the state formally charges the defendant with a crime, and in which the defendant usually pleads “guilty” or “not guilty.”
arrest – The initial step in the criminal justice process, in which the state deprives a suspect of his/her freedom due to alleged violations of criminal law.
assess – To figure out the value of something; to make another pay an amount of money.
assignment – To award a debt or benefits to another person. For example, a husband who does not pay child support can be forced to assign his wages to the court for his children.
asylum – The granting of protection against return to a home country to a refugee; can lead to lawful permanent resident status and eventually to citizenship.
attorney – Legal advocate who is licensed to practice law. Attorneys generally have to be “admitted” to a state’s bar before they can practice (go to court) in that state. Attorneys and lawyers are the same; these terms are used interchangeably.
attorney general for the state (AG) – Head of the state agency responsible for prosecuting violations of state laws. The AG’s office is the state’s “law firm” for civil matters. The AG’s office represents the State, either defending the State, or bringing lawsuits on behalf of the State.
bench warrant – A warrant that a judge issues for someone’s arrest. A judge may issue a bench warrant in a number of circumstances, including when someone does not obey a court order or fails to come to a court hearing that s/he was ordered to come to.
book – To enter into police records a suspect’s name and the crime for which s/he was arrested.
brief – A written legal argument, stating the legal reasons for the lawsuit based on statutes, regulations, case precedents, legal texts, and reasoning applied to facts in the particular situation. A brief is submitted to lay out the argument for various petitions and motions before the court, to counter the arguments of opposing lawyers, and to provide the judge with reasons to rule in favor of the party represented by the brief writer.
compensate – To give one party money or other benefits to make up for a loss or problem.
competent – Being “legally fit” to make decisions. The court may decide if a person is competent or incompetent. If someone is incompetent, the court may appoint a legal guardian to make decisions for that person.
consent – Free and willing agreement. (e.g., A “consent order” is made when both parties agree to the terms of the order and then the judge signs off on it.)
consortium – The services of a spouse. Services include household tasks one spouse performs for another and/or in addition to sexual services. (Term is used in law suits for “loss of consortium” where one spouse loses the services of the other and can sue for damages; available only in some states.)
contempt of court– Committed by a person who intentionally disobeys a court order, acts in a way that does not respect the authority and dignity of the court, or fails to follow a court order.
continuance – The postponing (rescheduling for later) of a court hearing. If you ask a judge for a continuance, s/he may or may not give it to you.
convey – To give, sell, or transfer something to another person.
court – Place where civil and criminal trials are held.
court officer – An officer of the court who protects the judge and keeps order in the courtroom. In a criminal case, the officer is in charge of the accused person while he is in the courtroom; and looks after the jurors.
court reporter – A legal stenographer who records what happens during official court proceedings.
criminal case – A legal proceeding brought by the state, county, or city against someone, charging the person with a crime.
damages – An award of money to the winning party in a lawsuit. Actual damages are out-of-pocket expenses such as lost wages or hospital bills. Actual damages in some cases may include an award for psychological harm. Punitive damages are an award to punish the wrongful party for willful improper action.
default judgment – A judgment made against someone who did not defend himself/herself against a claim. For example, someone asking the court for a restraining order may get one by default judgment if the accused abuser does not come to court.
defraud – To cheat or steal by false representation.
defendant – Person with charges or a lawsuit against him or her. This term is used in both criminal and civil cases. (The defendant is also sometimes called the “respondent.”)
defense attorney – The lawyer who represents the defendant.
delinquent – a minor under a certain age (depending on the state’s laws) who commits a crime. Also known as a “juvenile delinquent.”
district attorney – The attorney(s) employed by the state to prosecute people for state criminal offenses. Also known as prosecutors, they represent the state. A city government may also have attorneys assigned to prosecute city charges. These people function like district attorneys on a local level.
domestic violence – Each state defines domestic violence differently. For the legal definition in your state as it applies to restraining orders, please go to our Restraining Orders section and choose your state from the drop-dwon menu.
domicile – The place where you live.
emancipation – The process by which a minor child is declared to be an “adult” by a court of law. The child must petition the court for this right. The age at which you can file for emancipation is set by law in each state.
evidence – Proof; witnesses’ testimony; written statements or physical objects that someone presents at trial to make his or her case.
- testimonial evidence – Statements that witnesses make under oath at a trial.
- demonstrative evidence – Physical items that the parties introduce at trial, such as records, documents, exhibits, and objects such as guns or other weapons.
ex parte – A Latin phrase meaning “on one side only.” A judicial proceeding or order is said to be “ex parte” when it is taken or granted for the benefit of one party only, and without notice to any other person adversely affected. For example, you might have an “ex parte” hearing on your request for a restraining order during which a judge listens only to your side and then can grant you the order without the defendant (the abuser) present. The order will be temporary until the judge can hold a full court hearing with the defendant present to tell his/her side of the story.
examination – The questioning of a witness by a lawyer at a trial or deposition. When the lawyer calls a witness for his/her case and questions the witness, the questioning is called direct examination. When the opposing lawyer questions the same witness, the questioning is called cross-examination.
false imprisonment – The unlawful detainment of another person. This happens when one person deprives another of freedom of movement by holding that person in a confined space or by physical restraint. Examples include being locked in a car without opportunity to get out, being tied to a chair, or being locked in a closet.
felony – A serious criminal offense such as murder, for which the sentence can include imprisonment for more than a year.
frivolous – A pleading or claim is frivolous if no rational or reasonable arguments can be made to support the claim, and its purpose was to delay the court or embarass the opponent.
guardian ad litem – The person assigned by the court to represent the interests of a minor child or incompetent person in legal proceedings - the term “ad litem” is a Latin phrase meaning “for the purpose of legal action.” In some states, a guardian ad litem is appointed by the court to perform investigations or evaluations in custody cases, and to make reports to the court, sometimes with recommendations.
indictment – A written accusation by a grand jury charging an individual with a crime, generally a felony.
injunction – A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.
liable – Legally responsible.
jurisdiction – Authority (power) of a court to listen to and decide cases. Each court has the authority to hear certain cases. State and federal laws determine which subjects courts may decide and whether the court’s decision will be binding on someone who lives in another state.
jury – A group of people who determine the guilt or non-guilt of the defendant or, in a civil case, who decide which party wins the lawsuit. The lawyers screen the jury to make sure the people on it are neutral (impartial).
misdemeanor – Considered to be a “lesser offense” than a felony and that can lead to imprisonment for up to one year.
paternity – Fatherhood. Paternity can be established through a legal acknowledgment by the parents or though a court hearing, DNA test, etc. The exact method for establishing paternity may vary by state.
perjury – When someone purposefully give “materially” false or misleading testimony while under oath. Testimony is generally “material” if it relates to important or deciding facts in the case or proceeding. (Note: This is a general definition of perjury. Since perjury can be a crime, the actual definitions and the criminal penalties can vary from state to state.)
persecution – (In asylum proceedings) The infliction of serious suffering or harm, caused by government action or inaction, upon people who differ in a way regarded as offensive (race, religion, nationality, membership in a particular social group, or political opinion) in a manner condemned by civilized governments.
petition – A request to a court. (Also sometimes called an “application.”)
petitioner – Someone who presents a petition to a court or other official body. In many civil cases (such as protection order proceedings), the party who files the petition is referred to as the petitioner.
plaintiff – The party who brings a civil suit in a court of law.
plea – The defendant’s response to a criminal charge, generally “guilty,” “not guilty,” or “no contest.”
plea-bargaining – The process through which the prosecutor and the defense attorney try to reach an agreement where the defendant pleads guilty in exchange for a lesser sentence/ punishment.
probable cause – A reasonable ground for belief in certain alleged facts; having more evidence for something than against it. For example, probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime.
prosecute – To carry out a judicial proceeding; to proceed against a person criminally. A district attorney prosecutes cases against persons alleged to have committed violations of state criminal law; this is why the district attorney can also be known as a “prosecutor.”
prosecutor – An attorney who represents the state on behalf of the victim of a crime. He or she tries to present evidence to prove beyond a reasonable doubt that the defendant committed the crime as charged. A prosecutor will be assigned for criminal cases but not civil ones.
protection order, order of protection – A court order for someone to behave in a certain way (such as staying away from a victim and his/her home) and to stop violations of laws or court orders; may be called different names in different states, such as restraining order, injunction, etc.
public defender – An attorney appointed by the court for the legal defense of someone charged with a crime who is unable to afford or obtain legal assistance. The public defender is paid by the state, not by the person being represented (the client).
punitive damages – See “damages.”
quash – To annul, make void or suppress. The recipient of a subpoena or the party against whom the subpoena is filed can file a “motion to quash” in court to ask the judge to dismiss the subpoena so that the subpoenaed party does not have to comply.
respondent – The party against whom a petition or motion is filed. In many civil cases (such as protection order proceedings), the party against whom the case is brought is referred to as the respondent.
refugee – A person outside his or her own country who is unable or unwilling to use the protection of that country because of persecution, or a well founded fear of persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion.
regulations – Operating procedures (rules) of government agencies.
restraining order – See “protection order, order of protection.”
service of process – In the context of a restraining order, the actual delivery of court paperwork that informs a person of an upcoming hearing and any temporary restraining orders against him/her. When someone receives this paperwork, s/he has been served.
settlement – A written compromise reached by the parties in a civil case and approved by a judge.
stalking – Each state defines stalking differently. Please see our State Statutes page for your state and look for the definition of stalking in the criminal code or penal code section.
statutes – Laws passed by state or federal legislators. You can research them in law libraries or on the internet. The constitution is supreme over all statutes, and statutes have more authority than regulations.
subpoena – An order of the court that commands a witness to appear at a certain time and place to give testimony about a specific matter (subpoena ad testificandum) or commands a person/organization to provide specific documents (subpoena duces tecum). Any person who fails to comply with the subpoena may be held in contempt of court.
suspend – To stop temporarily or to postpone on certain conditions.
trial – The process through which all parties to a civil or criminal case have the opportunity to prove their sides of the case through evidence, testimony, etc.
verdict – The decision made by the jury in a trial as to the guilt or non-guilt of the defendant.
violation – The term violation can be used to refer to a type of low-level criminal offense (less serious than a misdemeanor). However, generally, a violation can also be when someone disobeys a court order – for example, a person can be charged with violation of a protection order, which can be a misdemeanor crime or a felony crime.
voir dire – The process through which parties to a court case question and select jurors for a trial. This may be done differently in criminal cases than in civil cases.
waive – To give up certain rights or responsibilities. (Examples: To “waive” your right to an attorney means you are giving up that right. You can also ask the court to “waive” any fees if you can’t pay them. The court then gives up its right to collect fees from you.)
This page has information on what it means for a court to have “personal jurisdiction” over someone, especially over someone who lives in another state. There are many reasons why you might be living in a different state than a person who is abusing or harassing you. You may have fled to escape abuse or perhaps you moved to a new state for another reason. The fact that the abuser lives in a different state might create a problem when you try to get a restraining order against him/her or if you are trying to get other remedies from the court.
Basic info and definitions
What is personal jurisdiction? Why is it important?
Personal jurisdiction means the judge has the power or authority to make decisions that affect a person. For a judge to be able to make decisions in a court case, the court must have “personal jurisdiction” over all of the parties to that court case. The judge might dismiss your case if the court does not have personal jurisdiction over the other party.
How does the court get personal jurisdiction over the parties in a lawsuit?
Generally, in civil cases, the person who is filing the court case (the plaintiff or petitioner) is giving the court jurisdiction over him/herself by just filing. When you file a court case in which you are asking for a relief from a court, you are telling the court that there is an issue you need the judge to address and that you will be bound by whatever decision s/he reaches. That means that you are agreeing that the court has the power or authority to make a decision that affects you (personal jurisdiction).
It is a little more complicated when discussing the person you are filing a lawsuit against (the defendant or respondent.) Our biggest law (the U.S. Constitution) wants to make sure that a defendant in a case has an opportunity to defend him/herself if a lawsuit is filed against him/her. To make sure s/he can defend him/herself, the plaintiff or the court system needs to notify the defendant of the lawsuit or complaint against him/her. Each state has its own laws in terms of what needs to be done in order to legally notify someone of the action against him/her and if that is to be done by the plaintiff or by the court. If the defendant resides in the state where the court case is filed, once the defendant has been legally notified, the court gets personal jurisdiction over that party and can now start the legal process. It is more complicated if the defendant lives in a different state than where the lawsuit was filed.
Note: In most states, if you file a court case against someone who lives out of state and that party comes to court (makes an appearance), s/he must raise the lack of personal jurisdiction as a defense before or during the first court appearance. If all parties appear and no one tells the judge that the court does not have personal jurisdiction over the out-of-state defendant, then the judge will likely let the case continue.
Personal jurisdiction over an out-of-state defendant
If the abuser lives out of state, when will the court have personal jurisdiction over the abuser?
For the majority of court cases, most states have what is known as a “long-arm statute,” which is a law that explains when a court can have personal jurisdiction over individuals who do not reside in that state. The long-arm statute lays out certain conditions, or “minimum contacts,” that must be met for the court to get personal jurisdiction over the defendant. Although this may vary from state to state, in general, the most common ways to get personal jurisdiction over the defendant are when:
- the cause of action occurred in the state where the case is being filed;
- the defendant was personally served with the court papers in the state; or
- the defendant has a substantial connection with the state (often called “minimum contacts”).
Note: There is one important exception to the information explained in this section. In cases involving custody of minor children, it does not necessarily matter if the other parent lives out of state. The court generally looks at where the children live – and that state’s court usually has jurisdiction over the children and their parents. There is a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that deals with this issue and applies in all states (except in Massachusetts where a similar law applies and Puerto Rico where no similar law has been adopted). The UCCJEA is a uniform law (statute) adopted by individual states that helps to set the “home state” that has jurisdiction over the children, and therefore, the parties. For more information on filing for custody in your state, you can go to our Custody page for the state where you will be filing.
If the cause of the legal action occurred in the state, would a court in that state have personal jurisdiction?
The “cause of action” basically means the reason that you are suing someone. If the cause of action happened in the state where you are trying to get personal jurisdiction over the other party, this is one way for the court to get personal jurisdiction. For example, let’s say you live in Virginia and your partner lives in Florida. If your partner assaulted you in Virginia while visiting you, then Virginia would have jurisdiction over you and your out of state partner to hear a court case related to that assault.
Does the court have personal jurisdiction if the other party was served court papers in the state?
After you file a court case, the other party has to be served with a copy of the papers that you filed and be notified of the upcoming court date. If you can have the defendant personally served with the court papers in the state where you filed the case, this will generally give the court personal jurisdiction to hear your court case. “Personal service” means someone other than you or another party in the court case hands the notice and the petition/complaint or other necessary documents directly to the person you are trying to sue. For example, if you know that the other party is coming to your state to visit family, attend a concert, or go to a business meeting, you can arrange to have him/her personally served with the court papers while s/he is in the state.
Note: In some states, service must be done by a sheriff or another certified person known as a process server. You may want to speak with a lawyer in your state to see if there are any special service rules that might apply in your situation.
How can I prove that the defendant has a substantial connection (“sufficient minimum contacts”) with the state where I file my case?
Generally, a court can get personal jurisdiction over a party if that party has a substantial connection (“sufficient minimum contacts”) with that state. In most cases, these contacts can be related or unrelated to the court case you are trying to bring. For example, if the defendant owns a home (“real property”) in the state or conducts substantial business in the state, then the court may be able to have personal jurisdiction over him/her. Proving sufficient minimum contacts can be a complicated issue and if you are trying to get jurisdiction over another party based on these contacts, you should consult with a Lawyer familiar with the laws of your state.
Subject Matter Jurisdiction
How do I know what court has the power (subject matter jurisdiction) to hear my case?
Subject matter jurisdiction is the authority or power that each court has over certain types of legal disagreements (disputes). For a court to hear a particular case, it must have subject matter jurisdiction over the issue or issues that you are asking the court to decide on. Some courts, called courts of general jurisdiction, will have subject matter jurisdiction over many different kinds of cases. Any issues that come up in court that are outside of that court’s subject matter jurisdiction have to be disregarded or dismissed because the court has no legal power to decide over them. For example, if someone dies and s/he has a will, typically every county will have a special court, sometimes called surrogate’s or probate court, that can make decisions on whether the will is valid and how the property listed in the will should be distributed. If you try to bring a case about a will into family court, the family court usually does not have subject matter jurisdiction to make decisions about a will and may not be able to make a ruling on your case. You might have to file multiple petitions in different courts to get the outcome you are looking for. For example, if you want child custody, child support, and a protection order, in some states, you might have to file three different petitions in two or three different courts.
When deciding in which court to file, it is important to know what your goals are, what you are trying to accomplish by filing a petition/complaint, and which court is able to provide you with the relief that you are looking for. To find out which specific court you have to go to in your state, you could ask a lawyer or court clerk in your area. Make sure to let the court clerk know what goal you are trying to accomplish so that s/he can give you the appropriate forms/petitions. We have a list of courthouses that have power to decide on protection orders in each state on our Courthouse Locations page.
What possible outcomes might happen in my case?
The outcome that you might expect in your case will depend on a number of factors. First, the court where you filed your case affects the possible outcomes. Different courts have different jurisdiction and may be limited in the kind of relief the court can order or award. Generally, some courts can only award money damages, some courts can only order people to do or not to do certain things (“equitable relief”), and some courts can award both.
Second, the relief that you can get in your case will also depend on what you have asked for in your petition or complaint. Generally, a court can only award relief that is asked for in the petition. For example, in restraining order case, unless you specifically ask for temporary custody in your petition, the court may not be able to grant that outcome. It may be possible for you to amend your petition, but there are rules that may not allow you to amend the petition in certain circumstances. It is important to include the relief that you want in your complaint or petition so that you are not prevented from getting that outcome at the end of your case.
Court cases often involve requests for many types of outcomes, known as “relief.” Generally, you are not limited to one type of relief in your court case. A judge may award several different types depending on the case. The types of relief that a judge might award include:
- Compensatory damages compensate, or pay you back for any monetary loss you suffered because of the legal wrong that was committed against you. For example, if someone attacks you, you could ask for the cost of the medical bills you had to pay because of the attack, the income that you lost for missing work, and the pain and suffering you experienced. Similarly, if someone breaks a contract, like a lease, the judge can award a money judgment for the amount owed in the contract.
- Punitive damages punish the defendant for the wrong s/he committed. They also can serve as a public example to discourage others from committing similar wrongs. Generally, when you see large amounts of money awarded as damages in a lawsuit, some of it is compensatory damages but a large portion will also be punitive damages.
- The laws of your state will have certain provisions for relief that a judge can award in certain types of court cases. For example, a divorce case is generally covered by statutes that tell a judge what kind of power s/he has in the case. Judges in a divorce can order the parties to split marital property, maintain life insurance policies, pay support, arrange for custody and visitation, among other things, because these outcomes are allowed by the laws of the state.
- Equitable relief is when a judge orders a person or entity to do or not to do something. Not all courts have equitable power (jurisdiction), so if you are asking for this kind of relief, you should check with the court clerk first to see if it is even possible. For example, small claims courts are usually courts of limited jurisdiction and can only award money damages. Therefore, you would not be able to ask the judge to order a person to give you back your personal property in a small claims case. The judge could award a judgment for the value of the property if it is under the small claims amount, but s/he likely cannot order the person to give you the property back. Note: Appellate courts, which are courts that hear appeals of lower courts’ cases, have power (jurisdiction) to decide if the lower court’s decision is correct. Some appellate courts also have the power to issue a “stay” to keep a lower court’s order from going into effect while the appeal is being decided. Appellate courts may also issue an injunction or a temporary restraining order to against a party to stop him/her taking certain actions in order to prevent a harm that appears to be forthcoming (imminent).
- Restitution is similar to compensatory damages but it usually happens only in criminal cases. For example, if a court finds a defendant guilty of criminal mischief for damaging your cell phone, the judge can order that the defendant pay you restitution for the value of the cell phone. The difference between a civil money judgment and a criminal restitution order is that probation or the court itself will oversee restitution. If the defendant does not pay restitution in a certain timeframe, then the judge can bring the defendant back into court for resentencing. You can see how this differs from a the possible penalties for not paying a civil money judgment on our page about Collecting Judgments.
- Costs and fees
As part of a court case, the judge might award the costs and fees of bringing the court case to the party that wins. This means that the judge may award a judgment for the cost of filing the court action, the cost of serving the papers, and sometimes even the attorney’s fees. Usually a judge will only award costs and attorney’s fees in extreme cases where one of the parties is being especially difficult and the litigation could have been avoided, or in cases where the statute or a contract between the parties specifically states that costs and fees are awarded (like in some leases).
Time Limits (Statutes of Limitation)
Is there a time limit on how long after an incident I am able to file for help in court?
You can only bring most causes of action for money damages or breach of contract within a certain amount of time after the incident occurred because of statutes of limitation. A statute of limitation is a time limit that applies to certain types of court cases. Many causes of action will have different time limits based on the laws of the state. It is important to know what your legal claim is and how long you have to bring it. State laws are largely available online and so you may be able to find the time limit by searching for your type of case, your state, and “statute of limitations.” However, statutes of limitations do not apply to all cases. For example, statutes of limitations do not apply to a custody case or a divorce – you can likely file those petitions at any time.
If you do not file your case within the specific time limit set out in the statute of limitations, you may lose the right to file the case. If you file after the statute of limitations expires, the judge might have to dismiss the case. For example, your state may have a statute of limitations of one year in cases where someone intentionally physically harms another person. Therefore, if someone harmed you in January of 2015, and then you tried to file your court case in January of 2018, it might be too late and the judge may dismiss your case.
As with most legal concepts, there can be exceptions and other ways that a case may still be valid even after the time limit (statute of limitations) has expired. For example, some states will suspend (toll) the statute of limitations while the abuser is in prison or in another state; or for victims of childhood sexual abuse, some state laws say that the statute of limitations does not begin until the victim reaches age 18 or 21. However, this can be complicated. If you have a claim that you want to file in court and you believe the statute of limitations has expired, you will want to try to discuss this with an attorney to see if an exception applies in your case. If you file and the case is dismissed because of the statute of limitations, and you later learn that there may have been an exception, you might not be allowed to bring the case again. You can go to our Finding a Lawyer page for legal referrals.
How can I be as safe as possible while there’s an ongoing court case?
It is important to consider your safety when thinking about whether or not to file a court case against an abuser. If you have fled an abusive situation and you are now in hiding, filing a court case might allow the abuser to locate you (or at least the county where you have filed the court case). Most states have address confidentiality programs that allow you to use a substitute address for legal filings. However, the application to join your state’s address confidentiality program might take some time to process. In addition, keeping your home address confidential doesn’t change the fact that the abuser will know when you will be in court for a hearing because s/he will also be required to appear in court.
If you are not enrolled in your states address confidentiality program, you might have to list your address on court paperwork that you file. Many courts will have confidentiality protections to block your address on the petition so that only court officials, not the abuser, can see it. If this is a concern for you, then you should discuss this with an attorney before filing a petition or ask the court clerk at the courthouse if there is any way to keep your address confidential.
Another possibility to keep in mind is that if the abuser is currently out of your life, starting a court case against the abuser could have the effect of re-starting the abuse. After physical or verbal abuse has ended, many abusers misuse the court system to continue their attempts to exercise power and control over survivors. For example, the abuser could ask for multiple postponements to try to inconvenience you or choose to appear in court without a lawyer just so that s/he can personally cross-examine you at trial to try to intimidate you
In addition, sometimes, there can be unintended consequences of starting a court case. For example, asking for certain things in court, like custody of children, could cause the other parent to suddenly want to be more involved. Filing for child support might establish paternity. If you are in a situation where the other parent is not asking for visitation or much contact, and that is acceptable to you, you may want to try talking with a lawyer about whether filing a custody petition is even necessary.
Here is a link to our Safety Tips in Court section so you can think through how to best plan for your safety.
I’m afraid the abuser may want to seek out revenge if I file a legal action against him/her. What can I do?
No one can predict what the abuser would or would not do better than you can. At the end of the day, it is your safety at issue and you will have to weigh the risks and rewards of going to court versus not going to court. If you think, in your situation, it is best not to file a legal action against the abuser, you might want to seek other alternatives to keep yourself and loved ones as safe as possible. A local domestic violence program might be able to work with you to create a safety plan that does not include legal action.
If you decide that you need to file a legal action or if your situation absolutely needs the court’s intervention, you should keep in mind that someone who is or was abusing you might want to get back at you (retaliate) if you file court papers against him/her. This might include lashing out at you or your friends and family; posting about you on social media; filing a court case against you; harassing you; or even physically assaulting you. If the abuser commits a crime while retaliating against you, there might be other legal remedies available for you. You can contact the police if it is safe for you to do so, or talk to a lawyer who can advise of possible legal alternatives. Either way, it is important to safety plan so that you and your family can stay as safe as possible. To see some ideas on how to plan for safety, you can visit our Safety Tips section.