Restraining Orders (or Orders of Protection) are court orders designed to
stop harassing behavior. These orders establish limits on the conduct of
the person that they are filed against, such as limiting contact, vacating the
home, and establishing visitation rights. If you feel that you are in
danger from your spouse, you can get the forms to file an order of protection at
your local courthouse. There is usually no cost to file a restraining order, and
the judge will usually issue the order within a day or two.
When used properly, orders of protection can help establish boundaries in a violent
situation. To help you understand more about the issues that may come up
with such orders, read the following questions and answers from the legal
expert:
He won't leave. Should
I file a restraining order?
Melinda's Question: My husband is an alcoholic and refuses to
leave until I go through with the divorce. I have a 7 month old baby.
Should I file a restraining order to keep him away?
Brette's Answer: You need to talk to your attorney about a
restraining order. If you feel you are in danger, it is important to discuss it
and to make sure you have a plan to stay safe when he is served. You should also
have a conversation with your attorney about what kind of visitation would be
appropriate. It may need to be contingent upon him entering a treatment program,
or it could be supervised. » Return to questions
What can I do if he violates the restraining order?
Rebecca's Question: We are going through a divorce where there are 2 small children and 2 businesses involved. In the restraining order the court gave me one business and him the other. He has tried to break into my home and has broke into my vehicle and stole all my keys. The deputies keep doing nothing even when he says "yes I did that". Now they have told him that everything the court issued me is still community property and as long as I am not home he can take it all. Is this the case or are they misinformed?
Brette's Answer: If you have a written court order directing who has ownership of what, it is binding. Go back to divorce court on a violation.
What if he doesn't show up
for the hearing?
Nicky's Question: I have a hearing this month for a restraining
order. What happens if my husband does not show up at the hearing?
Brette's Answer: If he was properly served, then you win and get
the order. » Return to questions
He got a restraining
order to hurt me. Can I fight it?
Gloria's Question: I left my husband because I felt that it
wasn't a healthy situation for the kids due to all our arguing. He got the
restraining order in retaliation to keep me from the kids. What is the
best way to fight a restraining order that has been issued with no merit.
Brette's Answer: Unfortunately, restraining orders are often
issued when they shouldn't be, but courts believe it is better to provide more
protection than is necessary than to deny someone the protection they need. If a
temporary restraining order has been issued, there will need to be a hearing
before it is made permanent. At this hearing you can explain your perspective on
the situation. If the order has already been made permanent, you would need to
be able to show that it is no longer needed. You need to see an attorney and
show him or her all paperwork in the case to this point. If you are being denied
visitation with your children, you may need to file a separate petition seeking
visitation. Talk to your attorney about this. Good luck. » Return
to questions
I haven't called, but he
still filed a restraining order. What can I do?
Joyce's Question: We split up after two years together, and I'll
admit that I did call him a lot after we broke up. I haven't called him
for about a month now, but he still wants to get a restraining order. Is
there anything I can do?
Brette's Answer: Go to the hearing for the restraining order.
Explain your side of things. If he claims you are still calling, ask him to
produce phone records to prove it. » Return to questions
This column provides general information about the various
aspects of divorce. It is not intended to take the place of
legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your situation, please
retain experienced legal counsel. WomansDivorce.com and
Brette Sember disclaim any liability from any claim arising from any
information contained in this column. This column is not a
substitute for legal advice.