Obtaining an Order of Protection
An order of protection—which can only be filed against a current or former family member by blood or marriage, family or household members, or other like relationship depending on the state—is an order directing one spouse to refrain from abusing, harassing, or even contacting the other, among other restraints. Violation of an order of protection can result in arrest and imprisonment.
The ex parte short-term order of protection that you or your attorney get from the court, without advance notice to your spouse, contains a date for a subsequent court appearance, usually within 10 days. You're obligated to make sure your spouse is served with a copy of the temporary restraining order. Under no circumstances should you give the order or a copy of the order to your spouse yourself. Instead, the sheriff's office will serve it, or you or your attorney can hire a process server to deliver the order to your spouse. When you return to court on the assigned date (the “return date”), you are required to present proof that your spouse has been personally served with the initial order. The proof is usually a sworn statement by the server. Your sworn statement will not be accepted as proof. Another reason why you should not serve your spouse with the papers is that he or she might react violently; it's best if you're not around.
The first step toward protecting your rights and forcing your spouse to keep a distance is the order of protection (sometimes called a restraining order)—a document signed by a judge that prohibits your spouse from having contact with you or conducting himself or herself in a certain way in your presence. Judges don't always grant requests for orders of protection. You usually need to provide evidence to the judge showing that you have been or could be victimized by your spouse. If you have been beaten in the past, photographs of injuries, police reports, and hospital or doctor's reports concerning your injuries will help you present your case. Orders of protection can be issued for other offenses, such as harassment, stalking, interference with personal liberty, intimidation of a dependent, neglect, willful deprivation (e.g., State of Illinois, 19th circuit court).
Typically, an order of protection may order your spouse to stay a certain distance from you, or it may prohibit your spouse from contacting, harassing, menacing, endangering, or in any way bothering you. In most states, you can obtain an order of protection yourself by going to court (often the family court or criminal court) even if you and your spouse have not yet filed for divorce. If you have filed for divorce, the court where you filed usually has the authority to issue an order of protection, and in many states, criminal court judges have that power as well.
You can also obtain injunctive orders against the use of property, against the changing of beneficiaries on insurance policies, and against the removal of the children from the jurisdiction. Although violations of these orders will not usually result in arrest and imprisonment, it is important to have these restraints in place as an incentive for spouses to refrain from such activities. These are typically called “temporary restraining orders” or more commonly “TROs.”
Typically, you can get an ex parte temporary order of protection. Ex parte means that you (or you and your lawyer) have gone to court without first notifying your spouse. Based on what you present to the judge, she might give you an order enforceable only for a limited number of days or weeks. At the end of that time, you must return to court, and this time, your spouse will be present (or at least will have been notified in advance that he or she should be). The judge will listen to each of you and decide whether to issue another order of protection, usually good for a longer period of time.
Serving the Order
Who will serve the order of protection? At the courthouse, you can arrange for a police officer or sheriff to help. Alternatively, you may bring the order of protection with a photograph of your spouse to a licensed process server who makes a living by serving court papers. Process servers often have offices near the courthouse, or you can locate one in the Yellow Pages or, of course, on the Internet. Even if the local police will not serve the order of protection for you, you should still bring or send a copy to your local precinct so that the police have it on record.
The person who serves the order of protection must sign a sworn statement telling when and where he served the order and how he knew the person who received the order was your spouse. You or your attorney will then bring that sworn statement to court on the day you are scheduled to be in court, thus documenting to the judge that your spouse received notification of the court date.
The conflict, anger, and violence that can be a part of some extreme cases during and after divorce are cause for alarm and must be dealt with swiftly. If your spouse becomes violent, this is not a time to try to settle your case or work out your problems with a marriage counselor or mediator. Pull out all stops. This situation calls for the intervention of the authorities—your lawyer, the police, victim specialists, the district attorney's office, and the courts.
More on: Dealing With Divorce
Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.
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