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Last Updated on: 13th October 2023, 08:21 pm
Divorce can be an emotionally difficult process under the best of circumstances. But when domestic violence is present within the marriage, the situation becomes much more complex for the abused spouse. They may seek a protective order, also called a restraining order, against the abusive partner prior to filing for divorce. So how exactly does obtaining a restraining order against a spouse work, and can it be used as evidence in the divorce itself? Let’s take a closer look.
A protective order, also referred to as a restraining order, is a court order issued to protect one family member from violence or harassment by another family member. It prohibits the abusive individual (the respondent) from further acts or threats of violence against the petitioner and other protected parties, such as children.Protective orders can include provisions such as:
Violating the terms of a protective order is a criminal offense that can result in fines or jail time.
Obtaining a Protective Order
To obtain a protective order, the petitioner must file a petition with the family court and appear before a judge to explain why they fear for their safety from the respondent. This usually requires describing a recent incident of violence or threats.If the judge agrees, they will issue a temporary protective order effective immediately. A hearing date is then set for both parties to return to court, where the judge will decide whether to dismiss the order or make it permanent.
The standard of proof for granting a protective order is relatively low compared to criminal cases – the petitioner typically only needs to show it’s more likely than not that abuse occurred.
While divorce in all states is now “no-fault”, meaning no proof of wrongdoing is required, abuse can still play a role in divorce proceedings.
If one parent has abused the other, this must be considered when determining custody arrangements. However, a finding of domestic violence does not automatically disqualify the abusive parent from all custody or visitation rights. The court looks at multiple factors to decide the children’s best interests.
In some states, domestic violence can affect how marital property is divided during divorce. For example, if one spouse tried to control the other by hiding assets, the victim may be awarded a larger share.
Some states presume an abusive spouse should not receive spousal support. Proving domestic violence may prevent the victim from having to financially support their abuser post-divorce.
If domestic violence played a significant role in the divorce, the abuser may be ordered to pay the victim’s attorney fees.
While a protective order does not definitively prove domestic abuse occurred, it can serve as persuasive evidence in a divorce case for several reasons:
That said, a criminal conviction related to domestic violence is generally the strongest proof for divorce proceedings. Other helpful evidence can include medical records of injuries, photographs of injuries, and testimony from witnesses.If abuse is proven, it can have a significant impact on the outcome of custody, financial and other divorce-related matters. Therefore, abuse victims should work closely with an experienced divorce attorney to gather the necessary evidence and build their strongest case.
While protective orders serve an important purpose, the relative ease of obtaining temporary orders creates potential for abuse of the system. Some spouses file dubious or exaggerated abuse claims solely to gain advantage in a divorce.
If you’ve been accused of abuse, here are some tips:
In summary, while protective orders do not establish definitive proof, they can serve as persuasive evidence of abuse in a divorce case. This can significantly impact child custody, property division, and financial matters. Accused spouses should vigorously contest any false allegations while victims should work with an attorney to gather evidence proving the abuse. As challenging as it may be, avoiding conflicts and complying with court orders is critical for both parties when domestic violence enters the equation.
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