Protective Orders

Divorce can be an incredibly challenging period. Navigating the legal landscape and managing your emotions can be a lot to handle. During this time, it is important to address situations where one spouse feels threatened or unsafe, and a restraining order may become necessary. Additionally, there are cases where an individual may seek a restraining order prior to filing for divorce.

If you or someone you know is in an emergency situation, please reach out to the National Domestic Violence Hotline at 800-799-7233. You can also text START to 88788 for assistance. Your safety and well-being are of utmost importance.

What Is a Restraining Order?

A restraining order, also referred to as a protective order, is a legal order issued by a magistrate or judge with the intention of safeguarding the well-being and safety of an individual who has been subjected to abuse, as well as their family or household members.

Who Can Get a Protective Order?

You may seek a protective order if you meet any of the following criteria:

• You are an adult or minor victim of domestic violence, as legally defined. This violence may be committed by a family or household member, a relative of your spouse, someone with whom you live, or someone with whom you share a child.
• You are filing on behalf of your minor child or an adult family/household member who is physically or mentally incapacitated and unable to file on their own.
• You have reported or witnessed an act of domestic violence resulting in abuse, threats, harassment, or other forms of intimidation directed towards you.

Types of Protective Orders

There are several types of protective orders that vary in duration and scope. The person who files for a protective order is the "petitioner," and the individual against whom the protective order is filed is the "respondent."

Types of protective orders include:

• Emergency Protective Order (EPO): An EPO is a short-term order that is usually issued by the court immediately after an incident of abuse. It typically lasts for three days or until the next court date.
• Preliminary Protective Order (PPO): A PPO is a medium-term order that provides protection for a longer period of time, typically up to 15 days or until the final Protective Order hearing. It can be issued without the respondent being present in court.
• Permanent Protective Order (PO): A permanent protective order can last for up to two years. This type of protective order requires a court hearing where both parties can present their evidence.

How a Protective Order Can Affect Divorce

A restraining order can have a significant impact on the divorce process in multiple ways. However, it is crucial to remember that your safety should always be the top priority.

Ways a protective order can impact divorce proceedings:

• Negotiation Challenges: In divorce situations, spouses are encouraged to negotiate on matters such as child custody and spousal support. However, domestic violence cases may require alternative solutions.
• Restrained Interactions: When a domestic violence restraining order is in effect, the spouses may be prohibited from being near each other, complicating divorce settlement negotiations.

Although a protective order can present unique challenges in a divorce, it does not make divorce impossible. By seeking the guidance of a knowledgeable attorney well-versed in both protective orders and divorce proceedings, you can effectively navigate through this complex process.

Get in Touch with Our Team

If you or someone you know is going through a divorce and needs assistance with a protective order, get in touch with our team at The Law Offices of Daniel J. Miller. Our experienced attorneys can help you understand your rights and navigate the legal process with compassion.

Contact our firm today at (757) 267-4949 or send us a message online.

What does the prosecutor have to prove and what are the penalties?

TYPES OF PROTECTIVE ORDERS - There are three different varieties of protective orders.

Emergency protective orders – lasts approximately 72 hours and can be obtained from a Magistrate or Judge by the petitioner or a police officer without the presence of the respondent.

Preliminary protective orders – Generally last approximately two weeks and is issued by a Judge without the presence of the respondent.

Permanent protective orders. – Can be entered for up to two years and usually occurs after a full hearing on the merits of the case.

Although each is different in terms of duration and how a petitioner obtains one (see our video on protective orders by clicking here) they all carry the same consequence if you violate the terms.

NOTICE - When the Court issues a protective order and you are served with a copy you are presumed to be on notice of the order’s provisions. These provisions include but are not limited to no contact with a petitioner and their family members, sole and exclusive use of a residence, prohibiting further acts of violence, and in some instances prohibiting you for terminating utilities. Each violation of the Order’s terms constitutes a separate and distinct charge.

TYPICAL VIOLATION - The most common violation occurs when the respondent is required to have no contact with the petitioner and the respondent or third party at the respondent’s request reaches out to communicate because they need to obtain items from the home or because they are responding to a text/ call from the petitioner or they want to speak with their children. Although the plain meaning of “no contact” is not contained in the actual order no contact means no in-person contact, no phone calls, no text messages, no emails and no third party contact.

THE CONSEQUENCES – It is a class one misdemeanor if you violate the terms of a protective order. If found guilty the maximum punishment for this crime is 12- months of active incarceration, a part of which may not be suspended, a $2500 fine and the reinstatement of a new protective order for up to two years

There are many technical defenses that may be available to you that only an attorney well versed in evidentiary rules and procedures will be able to provide. If we can help you with this or any other legal matter please give us a call at (757) 267-4949">(757) 267-4949.