Restraining Orders
Restraining orders are often issued
in Family Court to prevent a party from
stealing assets or unlawfully transferring
them to a friend or family member. Restraining
orders are also available, in appropriate
cases, to prevent violence, abuse, and
threatening behavior. In some states,
restraining orders are automatically
issued when a matrimonial case is commenced
in the court system. In other states,
it is necessary to file a motion or a
petition to obtain a restraining order.
Almost everywhere, a restraining order
can be obtained if an act of domestic
violence has been committed.
In general, restraining orders are issued
on a temporary basis first. They may
be issued ex-parte, meaning that the
offender is not informed of the request
for the restraining order until after
it has been issued. However, whenever
a temporary restraining order has been
granted, the court will schedule a follow-up
hearing, at which time all of the parties
will be given an opportunity to express
their positions before a more permanent
restraining order is issued.
Restraining orders are a form of injunctive
relief. An injunction is a legal device
which “enjoins” or prevents
a person from taking some action. Most
courts recognize temporary or preliminary
injunctions, as well as permanent injunctions.
In a divorce case, it may be necessary
to obtain a restraining order, to prevent
a party from dissipating assets. As such,
the court is issuing injunctive relief
against the dissipation of assets.
Domestic Violence and
Protection Orders
In every state, the court provides a
system for securing a protective order
in the event of domestic violence or
abuse. The laws have various names, such
as The Protection From Abuse Act or the
Protection From Domestic Violence Act.
Regardless of their names, these protective
laws are designed to prevent offenders
from committing domestic violence, and
to impose temporary safeguards for the
protection of dependent spouses and children.
In recent years, the domestic violence
law has been expanded broadly to include
many different kinds of offenses, such
as assault, terroristic threats, false
imprisonment, criminal restraint, sexual
assault, criminal mischief, criminal
trespass, harassment, and stalking. While
it was common in the past for domestic
violence cases to be filed by one spouse
against another, these cases now encompass
a wide variety of relationships, including
unmarried parties with dating relationships,
or unmarried parties who have had a child
together.
Domestic relations laws vary from state
to state. In almost every state, a temporary
restraining order is issued based on
only a minimal amount of evidence. A
victim of domestic violence often calls
police and is referred to a local magistrate,
district judge, or municipal judge, who
enters a temporary restraining order.
These temporary orders are generally
issued without the perpetrator being
given an opportunity to testify or offer
evidence in his defense.
However, in almost every instance, the
temporary order requires both the victim
and the alleged perpetrator to return
to court for a final hearing, in which
the judge hears all of the evidence from
both sides, including any other witnesses
with relevant evidence. At the final
hearing, the judge decides whether to
dismiss the temporary restraining order,
or whether to renew it, extend it, or
convert it to a permanent restraining
order. In some states, domestic violence
restraining orders automatically expire
after six months, one year, or some other
fixed period of time.
Once a final restraining order or protection
order is issued, neither the victim nor
the perpetrator should attempt to communicate
with the other party. Any such communications
or attempted contact may be regarded
as a violation of the restraining order.
Violators can be held in contempt, and
in fact, may be subjected to criminal
penalties such as jail time and fines.
If two parties have reconciled and wish
to drop their domestic violence case
against each other, or to withdraw an
existing restraining order, they should
apply to the court to have the restraining
order dismissed. This practice is much
better than simply beginning to communicate
because of the risk that one party will
change his or her mind and attempt to
enforce the restraining order against
the other party as if that party violated
it.
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