Separation Issues

How Do I Avoid Being Criminally Charged By My Spouse?

By Daniel Moore*

It is an unfortunate truth that, at times of separation, one spouse occasionally seeks to get the upper hand by making a false allegation to the police and having their spouse charged with a criminal offence. A criminal charge will usually remove the spouse from the matrimonial home and may severely restrict access to the children.

The following are some tips that may help you avoid being charged, or at least assist in your defence if you do get charged:

• The most common criminal charges are 'assault' and 'threatening'. Remember that an assault includes even the most minor touching, such as a push or a poke with your finger. So walk away if an argument starts, remembering that your spouse may be intentionally trying to upset you in the hopes that you will react. Never say (even if you don't mean it) phrases that refer to death, bodily harm or property damage such as "I wish you were dead", "I'm going to kill you", "If I can't have you, no one else can", "I'll never let you go", "I'll burn this bed before I let you sleep with someone else in it", etc.
• Keep a detailed daily journal recording where you are and who you are with so that if your spouse says you did something at 4:00 p.m. six weeks ago you can respond that this would be impossible as you were somewhere else and the person you were with can be a witness for you.
• If your interactions with your spouse are hostile, avoid contact as much as possible by, for example, using a friend or relative to assist in dropping off and picking up the children.
• Never send an email or call your spouse while angry.
• Let your lawyers do what you pay them to do. Don't discuss custody, access or money issues directly with your spouse.
• Use a digital recording device or an App for your smartphone to record all your interactions with your spouse so that you can play the conversation back to the police if your spouse reports you. Recording conversations that you are not a party to is unlawful.
• If you are a firearm owner, be 100% certain that it is properly registered and safely stored. If possible, get rid of it entirely.
• If you are attempting to reconcile, use the professional help of a counselor or therapist.
• Do NOT try to be an amateur detective and follow your spouse around hoping to discover infidelity, as this may be seen as criminal harassment.
• Do NOT access password-protected emails or other data, even if it is on a shared computer.
• Do NOT use a "keytracker" or other program to surreptitiously monitor your spouse's computer use.
• If there has been infidelity, DO NOT contact the other party or the other party's spouse.

*Daniel Moore is a Certified Specialist in Criminal law and is a partner with the law offices of Heller, Rubel