June 23, 2020
Divorce and Restraining Orders
If a person is being threatened or harassed by a family or household member to the point of being in fear for one’s physical safety, a family court restraining order may provide quick temporary relief. A restraining order can be granted within hours to 14 days after the written application is filed at a local courthouse, sometimes without a hearing or any prior notice being given to the respondent. Depending on the facts, the order may prohibit the respondent from contacting the applicant or other family members, including the respondent’s own children, or returning to a shared residence. It may require or prohibit additional things affecting the applicant’s safety such as turning in firearms. Violating a restraining order is a criminal offense.
For its intended purpose, the restraining order is useful and can be lifesaving. But it has limitations. For example, it cannot guaranty safety since it depends upon the respondent obeying the order. And, as a civil order, a respondent may be less likely to obey it than a protective order issued by the criminal court after an arrest.
Responding to a restraining order is not a do-it-yourself project, especially where a divorce is anticipated or pending. Being subjected to an order can cause immediate chaos: where to go to shower or sleep, how to keep a job, how to prevent your spouse from badmouthing you, how to maintain a relationship with children if you can’t return home or go to their school or activities. The long-term impact on a respondent’s legal rights can be even more devastating since the restraining order can set a precedent in the divorce case.
On occasion, an unscrupulous person contemplating or in the midst of divorce may misrepresent facts to get a restraining order – a bad idea for many reasons. For the respondent, rather than starting a divorce on an even playing field, they must dig themselves out of a legal hole. For the applicant spouse, stretching the facts or downright creating them can potentially backfire by making divorce settlement difficult or, if caught, destroying their credibility with the judge.
Given the limitations as well as potentially long-term consequences for the applicant and respondent, it is important that each consult with knowledgeable counsel before and during the restraining order process, especially if they are divorcing.
This article originally appeared in the June 18, 2020 edition of The Cheshire Citizen.« Back to all news