Questions About Restraining OrdersRestraining 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. 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 Related Articles: Brette Sember is a former
family and matrimonial attorney and mediator, nationally recognized
expert, and author of many books including The
Divorce Organizer & Planner, No-Fight
Divorce, and How
To Parent With Your Ex. 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. Divorce
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