Understanding Restraining Orders in Divorce
A divorce ends the marital relationship between spouses. As part of a divorce or even a pre-divorce decision or agreement, you and your spouse may live separate and apart from each other.
Protection from Abuse
If you have experienced abuse from your spouse, a divorce and decision to separate by themselves do not keep your abuser away. In particular, you may need protection even before you can file for divorce or have it granted by a court.
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A restraining order can afford you that protection -- pre-divorce and post-divorce. This type of order restrains, or prohibits, your abuser from, among other things:
- Contacting you through telephone, in person, email, texts, messages, writing
- Going to your residence, place of employment, school, children's school or daycare
- Following you
- Harassing, assaulting, stalking you through cyber or other means, or threatening you.
Beyond the no-contact provisions, a restraining or protective order forbids the person from possessing a handgun, rifle or other firearm during the duration of the order, can require the person to attend anger management or domestic violence counseling, and award you attorney fees you may to pay to get the restraining order.
Custody and Restraining Orders
You may request that the children be permitted to remain with you, but a restraining order does not award permanent custody. If you seek custody or visitation, you will need to file a separate action. In a custody lawsuit, the court determines custody, visitation and placement arrangements which promote the best interests of the children.
What Must You Show to Get a Restraining Order?
Spouses or former spouses qualify for restraining orders. Even if you are not married to your abuser, a domestic violence protective or restraining order can help you if you are or recently have been in a dating relationship.
You may get a restraining order by proving acts of abuse or that you have been placed or are in fear for your safety or that of your children. While sexual assault, hitting, pushing, kicking, grabbing and other assaults definitely qualify, they are by no means the exclusive grounds. Abuse can take mental, emotional and other forms. Examples of these acts include:
- Threats in person, by social media or otherwise of violence, use of a firearm or other weapon
- Threats of suicide or self-harm, especially when intended to force or cause you to stay in the relationship
- Being locked in a room
- Not being allowed by the abuser to leave a room, home or vehicle
- Trespass
- Withholding money, property, access to bank account or your own credit cards
- Coercing you to not find employment, to visit family, friends or others or to leave the home
- Unwelcome and repeated telephone calls or texts including hang ups
- Damaging or destroying property, such as by throwing items or tearing them, during arguments or other episodes of anger
- Stalking, as manifested by continuous following, photographing, video recording, texting, messaging, calling, sending unsolicited or unwanted gifts, or showing up at your place of work or business
- Causing substantial or severe emotional distress through social media or online posts
- Impaired or reckless driving while you or children are passengers.
How to Request a Restraining Order
If you need a restraining order, you can file a lawsuit. In most clerk of court offices, you will find forms that you complete to start the process. A family services agency or domestic violence agency can guide you in completing the forms and filing them with the court. Divorce or other family law attorneys represent clients in need of restraining orders and can file the complaint or appear with the victim in court after the case is filed.
The forms will ask you for information such as:
- Names and ages for you, the person against whom you seek the restraining order, and your children
- The specific actions you contend constitute abuse, domestic violence or are other grounds for the restraining order, along with the dates the actions took place
- Whether you wish to have possession of a vehicle or residence or temporary custody of the children
- Other addresses at which the defendant is to stay away.
Where harm has occurred, is occurring or is imminent, you may request an ex parte order. This grants you immediate, emergency relief before the court conducts a hearing and gives the defendant an opportunity to refute or defend against the allegations. In the meantime, the ex parte order prohibits your spouse, former spouse, or former significant other from having contact with you, going to your home or place of employment, harassing you or committing other acts of abuse. As with a permanent restraining order, the court can hold the restrained person in contempt for violating an ex parte or temporary order.