California Restraining Orders
Divorce comes with a lot of conflict, and sometimes that conflict escalates and becomes dangerous. In these situations, restraining orders are often issued.
They can be useful tools to keep people safe, and they can also be used to prevent a spouse from depleting assets during a divorce.
What Is A Restraining Order?
Types of Restraining Orders
Temporary (ex-parte)
A judge grants temporary restraining orders when they believe there is an immediate danger of harm. This happens most often in domestic violence situations or when a situation places a child in immediate and present danger.
The court doesn't require the respondent to be present or even given notice of the hearing. These temporary orders remain in effect until your court date, which is typically 20-25 days.
The court also awards emergency protective orders in real-time emergencies. They last up to 7 days and are initiated by police, versus a temporary restraining order, which requires filing with the court.
Permanent:
Given that a Permanent Restraining Order can remain in effect for up to five years, it requires a higher burden of proof. This means the person requesting the order must demonstrate to the court the necessity of ongoing protection.
The court only orders permanent restrictions after a hearing. In these cases, the respondent must be notified and given the opportunity to tell their side of the story.
Looking beyond timeframes, there are many types of restraining orders.
The four main types are:
- Domestic Violence,
- Civil Harassment,
- Elder or Dependant Adult Abuse,
- and Workplace Violence.
But there are others as well. Such as:
- Private Postsecondary School Violence,
- Gun Violence,
- Transitional House Misconduct,
- Criminal Protective Orders (Stay-Away orders),
- Juvenile Restraining Orders. (Protection from Juvenile, not for juvenile.)
Automatic Temporary Restraining Order (ATRO)
In California, there are also Automatic Temporary Restraining Orders(ATRO). They are automatically applied when your divorce petition is filed. This restraining order prevents actions such as:
- taking money from joint accounts,
- making withdrawals from retirement or investment accounts,
- and running up significant debt/credit while the divorce is pending.
If finances are being used to gain economic control or sabotage the other party, that qualifies as abuse, meaning a Domestic Violence Restraining Order can apply.
How Do You File For A Temporary Restraining Order?
You must file restraining orders with the appropriate family court. After you submit the forms, a judge will review them. It’s possible that the court will grant a temporary order on the same day you file the paperwork, but in some cases, it may take up to 48 hours.
Regardless of whether you receive a temporary order, a hearing will be scheduled, typically a few weeks after you file the paperwork.
The person against whom you are filing the restraining order must receive formal notice that the restraining order has been filed. This formal notification process is called "serving" the appropriate documents.
The judge cannot grant any long-term orders until the documents have been properly served and the other party has been notified.
Common Issues In Divorce
Divorce cases that involve allegations of domestic abuse complicate the matter. Because restraining orders have so many variables, it's impossible to predict an outcome without knowing all the facts.
That said, common issues often arise in divorces involving protection orders.
- If you have filed for a restraining order from your spouse, the court will likely impose restrictions on their access to the marital home, as well as issuing temporary child custody and visitation orders.
- Restraining orders serve an essential purpose by shielding people from dangerous situations.
- For those falsely accused of domestic violence, they face potential criminal charges, the court may evaluate custody issues, and more.
Because of their impact, restraining orders should not be taken lightly.
If you face divorce or custody issues and need protection, or have a restraining order against you, the first thing you should do is speak to an experienced family law attorney. Your attorney will guide you through the process and make sure to protect your rights throughout the process.
Related Reading: What Is An Emergency Protective Order?
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