When Affairs Blow Up: Reasons Why You Should Not Make a Sex Tape with Your Mistress

A recent case decided by the Superior Court of New Jersey concerning the issuance of a final restraining order (FRO) for domestic violence. In the case, B.D. v. L.N. (2019), the plaintiff sought a restraining order against the defendant, alleging that the defendant had engaged in harassment after the plaintiff and defendant had engaged in an extra-marital affair. Ultimately, the court concluded that the plaintiff had not presented sufficient evidence to show that the defendant had engaged in harassment to warrant an FRO, and accordingly the court refused to enter the FRO.

The case is a lesson in the aftermath of extramarital affairs, and the court’s unwillingness in certain circumstances to grant a FRO following an extramarital affair. We will give you some of the key points about the case.

Getting the Facts of the Case: An Extramarital Affair

The case began in terms of the law when the plaintiff filed an application for a temporary restraining order (TRO) under the New Jersey Prevention of Domestic Violence Act (PDVA). To obtain the TRO, the plaintiff alleged that the defendant “had engaged in acts that constituted harassment” under New Jersey law, including threats that led the plaintiff to be “scared for himself and for his child.” Yet the case actually began much earlier when the parties entered into an extramarital affair.

In 2016, the plaintiff met the defendant at work, and the two entered into what the plaintiff described as a “sexual relationship.” When this affair began, the plaintiff was already in a long-term relationship and referred to that partner as his wife. The defendant was also married. The parties would have sex in secret at hotel rooms. In 2017, the parties had an altercation in their workplace, and the plaintiff was fired. Prior to this incident, the plaintiff took a sex video of the parties on his phone. The plaintiff alleged that the defendant “agreed he could make the video, provided he kept it for himself.”

Alleged Threats Against Plaintiff and His Family

Shortly after the plaintiff got fired, the parties again met at a hotel room in Jersey City. The plaintiff alleged that the defendant took his phone and sent the sex video to her husband, after which the plaintiff informed the defendant’s husband of the affair. After the affair ended, the plaintiff says he told his wife about the affair, and said that the “defendant told him she would get back at him for breaking his promise to keep their relationship secret,” and that the defendant “said she and her husband would destroy his child’s life.” Both parties made allegations about interactions with one another at subsequent points in time.

In addition to the plaintiff’s allegations, the plaintiff’s partner, who “considers herself to be plaintiff’s wife, although they are not legally married,” also alleged that the defendant had made repeated contact with her and “told her to watch her children.” The defendant testified that she did not threaten or harass the plaintiff, and rather that the plaintiff had made threats against the defendant’s life.  The trial court granted the plaintiff’s request for an FRO against the defendant, and the defendant appealed.

Was the FRO Appropriate Under New Jersey’s Domestic Violence Law?

The appeals court had to determine whether the trial court’s findings that an FRO was appropriate were “supporting by adequate, substantial, credible evidence.” The appeals court further explained that, in a domestic violence case, the court must always consider:

• Whether the plaintiff has proven the need for an FRO by a preponderance of the evidence; and
• Whether there is an immediate danger to the person or property based on all evidence in light of the parties’ history of domestic violence.

The appeals court underscored that the trial court entered the FRO because it determined that the defendant’s “contact has to stop,” as opposed to out of a concern for the plaintiff’s safety or the safety of his family. Accordingly, there was insufficient evidence to grant an FRO.

Contact a Family Law Attorney in New Jersey

If you have questions about family law or domestic violence, a New Jersey family law attorney can help. Contact Jessica Mazur at jmazur@hoaglandlongo.com or call (732) 545-4717 for more information.