Restraining Order During and After Divorce

Restraining Orders and Divorce

There’s no denying that a divorce is a stressful event in itself, and when there’s domestic violence or threats of violence involved, the matter becomes even more straining. Thankfully, there are matters that one can take to feel safer, and one of the best and most common ones is a restraining order.

How does a restraining order work? How do you obtain it? Will it affect your divorce? You can find the answers to these questions and more below.

What Is a Restraining Order

A restraining order, or protective order as it is also often called, is a court order that stops an individual from performing certain actions. When it comes to a divorce process, there are two types of restraining orders that can be issued.

Automatic Restraining Order

Automatic Temporary Restraining Orders, or ATROs, are a court measure that is issued without one or both parties requesting it. It comes into life the moment the divorce paperwork is filed in court.

The purpose of an ATRO is to stop any of the divorcing parties from changing the financial status of the marriage. Usually, it will prevent you from doing things like changing bank accounts or closing the joint bank account, selling or transferring property, or modifying the beneficiaries on policies such as life insurance, health insurance, or the will.

The ATRO also prohibits one parent from removing a child or children from the state in which the divorce proceedings are taking place without the written consent of the other parent. It’s important to know, however, that this doesn’t apply if the child or children are already living out of state – neither do they need to come back.

Sometimes you might not even know that you’re violating the Automatic Temporary Restraining Order, which is why it’s important that you ask your lawyers what kind of actions would cause that to happen.

Domestic Violence Restraining Order

This is, you could say, a more serious type of restraining order. It is issued when either an act of domestic violence has already occurred or when there’s a threat of violence.

Who Can Get a Domestic Violence Restraining Order

The order can be obtained when the person performing the acts of violence against you is:

  • your spouse or ex-spouse
  • any of your current or previous household members
  • someone with who you already have or are expecting a child
  • people you are or have been in dating relationships with
  • a family member (parent, grandparent, child, grandchild, etc.)

How Do You Get a Restraining Order

Divorced wife defends herself

As we already mentioned, ATROs are issued automatically, which is why we will focus on how you can get a domestic violence restraining order. So, here is a step-by-step guide.

Step 1: Go to the district court. It could be where you live, where the abuse has taken place, or where the abuser lives. You can easily find which district court is closest to you on the internet. Once you’re there, find the civil court clerk and ask for a petition for a protective order.

Step 2: Fill out the court forms. You will be asked to describe recent violent incidents that took place. Make sure that you use descriptive language. Be as specific as you can. If you remember the date and time when the specific situation took place, include that as well. If there were any prior incidents of violence, add them as well. If you have already taken some court action against the abuser, write about it too.

If you’re having trouble with filling out the court forms, you can always ask the court clerk for help, especially if you don’t have a lawyer. Also, make sure that you sign the forms in front of them. Give the documents to the clerk – they will pass them on to a judge.

Step 3: The judge may want to ask you some questions, so you should stick around for a while. They will then decide whether you should receive an ex parte order, which is a type of order that can be issued without the need for the other side to respond.

If the judge decides to issue the order, you will be given a copy. Make sure that all the information on it is correct – in case it’s not, you should ask the clerk to correct it for you. Keep the order on you at all times, and if you can, make some copies and keep them in places you frequent the most, such as your workplace, your car, or your child’s daycare or school if you have them.

If you’re in need of a full protective order, then you will receive a document with the date of the official court hearing.

If you’ve been denied the ex parte order, you can still request the final protective order.

Step 4: The abuser will be served with the protective orders you were issued, as well as a notice of the official court hearing if there will be one. The documents will be delivered by the sheriff or another law enforcement officer.

Step 5: It’s crucial that you attend the court hearing. If you don’t, then your ex parte protective order will expire, and you will be forced to repeat the process. However, as you know, life is unpredictable, and there might be a situation in which you definitely won’t be able to attend – in this case, you need to contact the court and ask about “continuance” for a later court date.

If, on the other hand, the abuser doesn’t show, then there are two ways in which this can go – the judge will either give you a full protective order against the abuser without them being present, or they might decide to postpone the hearing to a later date. If that’s the case, you’ll need to ask the judge to extend your ex parte order.

Finally, it will be time for the hearing. During it, you will have a chance to talk about the domestic violence incidents that took place, as well as present evidence. Your abuser will also have the chance to defend themselves. While it isn’t a necessity, you’d feel better if you had a lawyer in your corner. After everyone has testified, the judge will decide whether they should provide you with a protective order.

Step 6: Once you get your protective order, you should do the same thing you did with the ex parte order – check if the information is correct and make some copies. When leaving the courthouse, you can ask a court officer to escort you or hold your abuser up for a while. If it’s possible, you might want to consider changing your locks and phone number.

If you didn’t get a protective order, nothing is lost yet – you can go to the nearest domestic violence resource center and ask for support and advice on how you can keep safe. If a new violent incident occurs, you can reapply for the order.

Being Denied Restraining Order Because of the Relationship

Sometimes, the court doesn’t grant you a domestic violence protective order because of the relationship you were in with the abuser. If that’s the case, there are other orders you might pursue:

  • dating violence protective order – if the abuser is someone you dated, but you didn’t live together.
  • child protective order – you can apply for this order when you are seeking protection only for your child.
  • civil stalking injunction – this is an order offering protection to victims of stalking.
  • sexual assault restraining order – you can get that order if you’ve been or are a victim of sexual assault
  • extreme risk protective order – this type of order prevents the person against who the order is issued from access to guns

What Will a Restraining Order Do

To put it simply, a restraining order will prevent the abuser from doing anything that would make you feel uncomfortable or unsafe, such as, for example, staying in the same house as you, hanging around your house, stopping you on the street, etc. It will also prevent them from convincing other people, like your friends or family members, to threaten or harass you.

The restraining order can also affect spousal support – the abuser will most likely be unable to receive spousal support from the victim.

What’s more, a judge can make a decision regarding a minor child or minor children and how it will look from the moment the restraining order is enforced. For example, they can order temporary child support, or they can order for the abuser to not be able to contact the children’s doctors, schools, daycare, etc. They might also establish temporary custody or visitation decisions.

It is also possible to ask the court for supervised visitation or to come up with a safe arrangement for when the victim’s children are being transported between the abuser’s and the victim’s houses.

Restraining Order and the Divorce

Restraining orders can affect the divorce proceeding more than you think – and we have already named a number of ways above.

For example, usually, when a divorce takes place, your lawyer would encourage you and your soon-to-be ex-spouse to meet and try to negotiate things like child support, spousal support, property division, etc. When a restraining order is in place, this is obviously not recommended. In fact, in many cases, the restraining order will prohibit both spouses from being in the same space. That doesn’t mean negotiation isn’t possible – it is, but it will be done through their lawyers.

As we already mentioned, the abuser might also be ordered to leave the family home. Usually, both spouses are allowed to stay in the property until the divorce is final and the judge decides what to do with it. When one of the spouses is abusive, this might not be the case.

Also, spousal support – depending on the state you’re in, the abuser might be denied spousal support if they’ve been convicted of domestic violence within a few years of the dissolution of marriage (for example, in California, it’s five years).

Another thing that restraining orders can impact is child care. The judge will look at several factors and determine what will be in the best interest of the child or children. This means that despite the abuse done to you, your soon-to-be ex-spouse can still be given the right to visit their children – but it will usually be limited and supervised.

Restraining Order After the Divorce

So what happens with the restraining order once the divorce process is finalized and the divorce has been granted? The answer is nothing (at least in most cases). The end of the proceedings usually doesn’t mean that the protective order stops working – while this is an individual matter, most restraining orders work for months, if not years after the verdict is announced. It is also possible that your ex-spouse will be faced with criminal charges – but that happens separately from the divorce.

The Bottom Line

Dealing with a divorce in itself is not easy, as it hugely impacts your mental health. However, a divorce where domestic violence is involved can be even tougher – especially when you have children, as you need to think about more than yourself, you also need to think about them. One of the ways to ensure yours and their safety is by applying for a restraining order. Hopefully, after reading this article, you have a better idea on how to do it and how it will affect your divorce.

If you or someone you know is a survivor of domestic violence, there are several ways to get support – one of them is calling the National Domestic Violence Hotline, who will listen to you and provide confidential support. They can help you decide what to do next.

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