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Will a protective order prove help prove my grounds for divorce?

October 3, 2017

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.

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