Family courts take allegations of spousal abuse extremely seriously. As such, allegations of abusive behavior can impact parental rights, visitation, and other pertinent matters if you are filing for divorce. If you are divorcing an abusive spouse or if you have been accused of abuse and are uncertain how to protect yourself and your children, our caring and compassionate family attorneys can help you.
Because our team has over 35 combined years of exclusive family law experience, we understand how sensitive these situations can be. O’Connor Family Law can be your dedicated legal advocate that protects your rights.
Restraining Orders in Divorce
A restraining order can provide short or long-term protection for those dealing with an abusive partner during divorce proceedings. When one spouse files a petition for a restraining order, it must describe the allegations of abuse as well as include information that supports these allegations. Although it can be hard to talk about, it’s best that this affidavit include the specifics and details of any physical abuse, the threat of physical abuse, or any sexual abuse that you have been victimized of. A restraining order can include a request for sole physical and legal custody of your children and for the other spouse not to be able to contact them. Then, the petitioning spouse must go before a judge and explain why they are requesting the order.
When requesting a restraining order through the Court when the other spouse is not present, if the Court finds you are in a significant risk of harm, the Court will grant you a temporary restraining order for approximately 10 days. There will then be another hearing after the Defendant is served so that the spouse has a chance to appear and state her or his side. If the Court decides to grant a permanent restraining order, it could remain in effect for up to 12 months. In severe cases, the Court can grant a permanent restraining order.
If you have to obtain an emergency restraining order during days or hours that the Court is not open, you can seek a restraining order through your local police department. When you obtain a restraining order this way, it will expire the next business day, which means you will need to appear at court to request another restraining order through the Court.
This order typically requires the Defendant to refrain from specific actions. For example, the restraining order may require the alleged abuser to stay a certain number of feet or yards away from their spouse or to cease all communication. It can order them to remain away from a workplace or, if kids are included, away from their school or daycares. If the Defendant violates this order, they could face criminal punishments, inclusive of jail time.
One of our skilled attorneys can help you file a petition with the courts if you have been threatened by your soon-to-be ex-spouse. Alternatively, if you believe that you are being wrongfully accused of abuse simply because your spouse is attempting to get an upper hand in your upcoming or ongoing divorce and are facing a restraining order during the divorce process, our team can help you build a defensive argument.
Consequences of Abuse Allegations on Parental Privileges during Divorce
When one spouse files for divorce because their spouse is abusive, the court can take this into account when making decisions regarding parental privileges. Once someone makes these allegations, a judge must determine whether abuse has certainly taken place before deciding on matters such as visitation and child custody. If the court determines that a spouse is abusive, whether it be emotionally or physically, this can affect that spouse’s ability to have custody or parenting time with their child if the Court finds that the abuse has or could negatively affect the child.
For example, if an individual has been found guilty of abusing their child or soon-to-be ex-spouse on multiple occasions, the court may deem it appropriate to remove their parental privileges and terminate any visitation or only allow visitation to be supervised. However, if this party can show that having visitation rights would be in the child’s best interests, the court may grant limited privileges to that parent.
Unfortunately, this is also the reason why many people unjustly allege that their spouse has physically abused them or threatened them when there is a divorce or custody matter pending. If you have been wrongly accused of abuse or you think your spouse might seek a restraining order, there are steps you need to take to help protect yourself and build your defense in case you end up in court trying to defend yourself against a restraining order.
I’ve Been Wrongly Accused and Just Got Served with a Restraining Order
Our firm has extensive experience representing parents who find themselves at the receiving end of a restraining order due to false allegations of abuse. Usually, these situations happen when there has been an argument, which suddenly gets exaggerated to a screaming match where you were threatening to kill the other person in an attempt to obtain a restraining order.
We had a case where an unmarried Father had the Mother served with a Complaint for Parenting, Custody, and Support and, literally 13 seconds after being served, the Mother called the police and reported that Father was both physically and sexually abusive.
Why would someone do this? Well, there’s a few different reasons: to get an upper-hand in the custody matter or to get you kicked out of the house or, sometimes, just for pure revenge.
If your to-be ex has ever even threatened to get a restraining order against you if you do not agree with what he or she says, call us right away to learn how you need to protect yourself.
If you are served with a restraining order and you live together, here’s what to expect: The police will come to your door and serve you with the restraining order (by simply handing it to you). You will have approximately 5 – 10 minutes to grab your bare necessities. The important thing to grab here are the items you need to make it approximately 10 – 20 days out of the house. If you take medication, have work-related items, credit cards, or have any important documentation that you need, make sure you take it with you. If you think your spouse might obtain a restraining order against you (even if you know it would be based on lies), it’s best to prepare an emergency supply bag of the things you need because you will not have a lot of time once you are served to get out of the house. You will NOT be able to get back into the house for at least ten days.
If you’re served with a restraining order, you need to hire an experienced attorney IMMEDIATELY. This is so important. Having a lawyer who can prepare for an evidentiary hearing and gather evidence showing that you did not do what you have been accused of is so important. If you hire an attorney the night before you have to go back to court, that is not going to allow for that attorney to prepare your best defense.
That said, you could be served with two types of restraining orders: One that your spouse obtained while the court was not open. In this case, the restraining order will expire on the next business day and you will be required to go to court that day to defend yourself at the hearing. This can be as quickly as the very next morning. Although having a restraining order extended against you is not ideal, if you have not already been working with a lawyer to protect yourself, you will likely want to ask the Court to allow you to hire an attorney and come back for the hearing later.
The other way you could be served is with a restraining order that your spouse obtained directly at court. In this case, the Court would have found that there is a risk to your spouse’s safety and granted the order for approximately 10 days from the date it is obtained. It’s not great to be in that situation, but defensively, this gives you the best chance to have a strong defense when you go back into court for your hearing. Hire our firm immediately!
Get Legal Help if You Are Divorcing an Abusive Partner
If you are in an abusive situation and want to file for divorce, O’Connor Family Law can guide and support you during this difficult process. One of our experienced lawyers can file the documents to obtain a protective order, present evidence detailing the abuse you suffered, and fight aggressively so that the terms of your divorce protect you and your children.
Additionally, our team is prepared to help those who we believe have been wrongfully accused of abusive behavior during the divorce process. Please reach out to our team today for help.