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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