Will a protective order prove help prove my grounds for divorce?
Divorce is difficult enough, but when there are elements of abuse in the marriage, whether emotional, financial or physical, it is always more stressful. It is estimated that approximately 36 percent of people in the United States cite abuse and domestic violence as their grounds for divorce. Abuse against you is extremely important in your divorce and is taken seriously by the courts.
Many divorces are considered no-fault divorces. In the literal sense, that means the spouse filing for divorce does not have to prove fault on the part of the other spouse and they can use any of the grounds available to file for divorce. It means that both parties agree to the divorce, they are not contesting anything in regards to the divorce such as custody of children, ownership of property or other financial matters.
Fault divorces are those in which blame for the dissolution of the marriage is placed on one party. The accused spouse may have been chronically unfaithful, had alcohol and substance abuse issues, or inflicted cruel or abusive treatment on their spouse. If there are children or property involved it can become quite contentious.
Orders of protection can be issued when filing for divorce if there is any doubt for an attorney that the situation may warrant extra protection. Men are more likely to be the receiving spouse and orders of protection against them vary from orders to “stay away” to “refrain from.”
Orders involving the language to “refrain from” generally require the served party to refrain from verbally abusing a spouse, calling them by telephone, using texts or e-mail or calling a spouse on their job. Orders to “stay away” force the served party to completely stay away from their spouse, their home, their spouse’s workplace and other directives or be arrested and detained for violating the stipulations. Even if the home is owned by the accused spouse or if their name is on the lease, orders of protection to stay away will mean they must vacate those premises.
In some states, orders of protection can also grant temporary custody to you during the divorce, prevent an abuser from having any contact with a minor child, order the spouse served to assist with temporary financial support and provide other means of support for you and your minor children. Consult your attorney on getting such things listed in your protective order.
When a protective order is filed, a judge will review the order. The judge may ask questions as they review your petition. If a judge determines that you are in immediate danger, they will issue a temporary order of protection.
The accused spouse will be served with the temporary order of protection and from the moment they are served, they can be in violation of the order should any of the stipulations of the order not be met.
A hearing will then be set within two weeks from the date you filed the order. At this hearing, a judge will determine if the order will continue for a certain period of time then expire or if it will be a permanent order. At any time after the accused spouse has been served, they may file for an emergency hearing as long as they state why they need an emergency hearing.
You must show up at the emergency hearing or your order of protection will expire. The fact that you did not appear as required will be documented by the court and will appear unfavorable for you. It could also make it difficult for you to file for a protective order in the future. The judge will evaluate the abuser’s past history of violence, how badly they hurt you or how they threatened you, look at the evidence presented at the hearing, and listen to both sides of the story.
Protective orders are tools that can assist you when seeking justice or protection, and anytime a spouse is abusive verbally or physically, judge’s and courts of law take that very seriously. Knowing this exists in the marriage helps attorney’s tailor the best divorce strategy, and judges the appropriate finalizations in divorce decrees.
If you have found yourself involved in a divorce case, you likely have a myriad of questions. Included on your list of queries may be whether a protective order will assist in proving your grounds for divorce.
The answer to that question depends on a number of factors, including where you live. The fact that you have various questions regarding your divorce case underscores the fact that you best protect your legal interests by seeking out and engaging the professionals services of a skilled lawyer.
Overview of a Protective Order
A protective order is a judicial decree that is designed to control the conduct of an individual. How and when a protective order is issued depends on the specific laws of the state in which the individual seeking this type of assistance resides.
A person can seek a protective order when he or she has been abused in some manner. The law of a given state establishes what constitutes abuse sufficient to warrant a protective order. A person in need of this type of order prepares and files an application with the court.
In the application, the person seeking a protective order delineates the conduct engaged in by his or her spouse. The application for a protective order is filed with the court. A judge then issues a temporary protective order and schedules the case for a hearing. The hearing will occur very soon after the temporary order is issued.
At the hearing, both spouses are able to present evidence regarding the propriety of a protective order. If a protective order is sought as part of divorce proceedings, the judge presiding in the marriage dissolution case will set a special hearing to consider evidence regarding the protective order issue.
If the judge agrees with the person seeking a protective order, a final protective order is issued by the court. The laws in each individual state differ as to how long a final protective order will remain in effect.
Fault Versus No Fault Divorces
There are two broad categories of divorce cases in the United States. Depending on where you reside dictates what type of divorce proceeding you can pursue.
If you are seeking a divorce based on fault, the fact that you successfully obtained a protective order may be helpful in proving your grounds for divorce. If abuse is an allegation underpinning the divorce petition, the fact that a protective order was issued can play a role in proving that the grounds for a divorce do exist.
If a no fault divorce is sought, the party seeking to end the marriage needs to demonstrate what are known as reconcilable differences. The party must demonstrate that the relationship between the spouses has deteriorate to the point that the goals of marriage can no longer be satisfied.
A person seeking a no fault divorce need not demonstrate that the other party has done something wrong or inappropriate to prove the grounds necessary for divorce. Therefore, the existence of a protective order is not likely to lend much in the way of support for a divorce. With that noted, a protective order might be deemed to be some evidence that a couple does have irreconcilable differences.
Protective Order and Child Custody and Visitation Issues
Where a protective order might be used to prove the grounds for certain judicial action in a divorce case would be in regard to issues pertaining to children. The existence of a protective order could have a direct bearing on child custody, particularly if the children born during the marriage are included within the protective order.
Depending on the reasons for the protective order, its existence could impact the custodial arrangement in a divorce case. For example, the parent who obtained a protective order might we awarded sole custody in a divorce case. This grant of sole custody could extend to both physical and legal custody of a minor child.
Physical custody involves which parent will provide a residence for a child. Legal custody is the ability to make major life decisions on behalf of a child. These include issues like education, religion, and medical case.
In addition, the existence of a protective order could have a bearing on parenting time or visitation in a divorce case. Depending on what underpins a protective order, the non-custodial parent could face restrictions on his or her visitation. These restrictions could include a requirement for parenting time or visitation to be supervised.