Spousal Restraining Orders: How to Obtain?

Spousal Stay-Away Orders

These Orders Are Commonly Issued From Family Law Courts

The courts take these types of restraining orders very seriously. They are issued by the court to prohibit one of the spouses from doing or not doing something perceived as potentially harmful to the other spouse or children.

Restraining Orders Can Significantly Impact Custodial Rights: Even though restraining orders are usually temporary, they can have long-term effects on child custody and visitation rights. In situations in which domestic violence is alleged, the accused parent may be restricted by the court from having any access or contact with the child whatsoever.

Stay-Away Orders Backed By Courts Contempt Power 

The most common type of restraining order is the “stay away” order, which legally prohibits one spouse from being near the other spouse or children. Intentionally violating a restraining order is a criminal offense and constitutes contempt of court.

Restraining orders usually require that the moving party, the spouse seeking the restraining order, offer evidence to the court of abusive and/or potentially harmful conduct committed or likely to be committed by the other spouse.

If the court issues a restraining order, the court has likely been convinced that one of the parties is not acting as a responsible parent and, therefore, can influence the court’s decision to determine that party’s custodial rights later.

General Procedure For Obtaining A Stay-Away Order

The legal rules and procedures necessary to obtain a restraining order depend entirely on your state’s laws. For this reason, we are using the State of California as a general guide to familiarize you with how most states deal with the restraining order process.

What You Can Likely Expect From The Court Process 

The following are general requirements and the types of information most courts will require from you. All courts have forms that assist you in the step-by-step process and help you manage it.

The better prepared you are to provide the court with all relevant and required information, the higher the likelihood that you will be granted a restraining order and other remedies described below.

Filling Out A Domestic Violence Restraining Request

The first step in getting a domestic violence restraining order is to inform the court about the abuse you’ve experienced and the protection you want. 

This is accomplished by filling out a set of court forms. This usually takes one to several hours to review and fill out for most people. 

It’s best to start with the most recent abuse first, even if it is not the worst. 

Describing The Abuse

Write Down All Major Events Of What Happened 

The judge needs facts in making their decision. For example, if the person has been harassing you, tell the judge what the person specifically did to you, how many times they harassed you or made contact with you, and what they said and did in each incident. If you have proof, such as emails or text messages, make sure to include them with your request. 

Not Recalling All Dates And Specific Events

Once you finish writing about the most recent event, it’s advised that you write about any other incident you want the judge to know about, including the worst of the abuse. Give as much detail as possible for each incident and if you can, provide specific dates. While exact dates are preferred, approximate dates are also acceptable at this stage of the court proceedings.

If you need to remember the exact day something happened, give an estimate and write down that it is an estimate. For example, One incident occurred in the early evening hours about a week before Christmas. My estimate is likely December 20th, 2022. 

Your Request For Restraining Must Be Factually Specific: To help you remember specific incidents that support your case, consider whether the incident happened around a holiday or a special occasion. Often, this will help jog your memory of the facts, times, persons, and dates surrounding the event.

Detail What Specific Orders You Want

Are You Requesting A “Spousal Support” Order? 

 Spousal support is the amount of money the abused spouse will need to help with living expenses. If you file one, you can also ask for spousal support in a divorce or legal separation case. This step is an optional part of your restraining order request. 

The judge examines the approximate amount the spouse requires to pay their expenses and whether the alleged abuser makes a sufficient amount to meet that need. 

Are You Requesting A “Child Support” Order? 

A child support order specifies how much a parent must pay monthly to support the child. A judge will consider both parents’ ability to pay and the time each parent spends with their child to decide who will pay child support. 

Most of the time, child support is paid to the parent who has the child most of the time, also called the primary custodial parent.

Make Sure To Give Notice Of The Court Hearing

The judge or its available family court support staff will likely assist you in completing the necessary forms. One requirement is to give prior notice to the accused of the day and time of the hearing so that they will have an opportunity to attend to explain or oppose your request.

Major Misconceptions About Spousal Restraining Orders

Misconception: Restraining Orders Are Only for Physical Abuse
Reality: Many believe that restraining or stay-away orders are necessary only in cases of physical violence, overlooking that they can also address emotional abuse, harassment, or threats.

Misconception: Restaining Orders Are Automatically Granted
Reality: Requesting a restraining or stay-away order does not guarantee its approval. Courts sometimes require substantial evidence of a threat or abuse.

Misconception: Restraining Orders Are Permanent
Reality: Restraining and stay-away orders can be temporary or permanent, depending on the circumstances, facts, and judgment of the court.

Misconception: You Need a Lawyer to Obtain a Restraining Order
Reality: While having a lawyer can help, individuals can file them on their own. Today, courts provide spouses and former spouses with step-by-step guidelines on filing them, what the application for the order must state, and what they will need to prove at the hearing.

Misconception: Restraining Orders Prevent All Contact
Reality: Restraining and stay-away orders rarely prohibit any contact with a spouse or former spouse. In many cases, restraining orders may allow necessary communications, especially regarding shared children.

Misconception: Restraining They Are Only for Spouses and Former Spouses
Reality: Restraining and stay-away orders apply only to married or formerly married couples. In fact, they can be sought by anyone in a domestic relationship, including partners and cohabitants.

Misconception: Violating a Restraining Order Is a Minor Offense
Reality: Many people underestimate the seriousness of violating a restraining order. Based on the facts and circumstances, violations can lead to criminal and contempt of court charges, fines, and even jail time.

Divorce Attorneys

If you have specific questions or require additional information about your legal rights and obligations, consult a verified Divorce Attorney as soon as possible.