Restraining orders are orders issued by a judge that prohibit people or entities from taking certain actions. In divorces they are commonly used to reduce contact between the parties in an effort to reduce the chances of violence or to prevent the destruction of assets.
In some counties these orders are automatic and go into place as soon as either side files for divorce. In other counties the order must be requested and granted by the court.
Temporary vs. Permanent
Some orders are temporary. They only last until a final order is entered and the divorce is over or until the court changes the order before the divorce is finalized.
Others are permanent. They last until a court changes them. To determine whether the court might be willing to change the order you must first ask why the Order was issued in the first place?
Why did the judge issue the order to begin with? That is what the judge is going to ask him or herself when presented with a motion to lift or modify the order. If the order was a standing restraining order that is applied to every case the judge will quickly move on the merits of your request. On the other hand if the order was specifically requested by your spouse the judge is going to want to revisit the reasons.
Restraining orders that were requested in an effort to stop or prevent threats, harassment or abuse of any kind are going to be scrutinized closely. The judge may want to revisit what happened to cause the order to be filed in the first place. They are certainly going to want to know what has changed to make the order unnecessary. Good reasons to lift or modify a restraining order that was requested to prevent harm of this nature include: reconciliation of the parties, anger management classes, parenting classes, therapy, medication for mental health conditions and geographic distance between the parties.
If the order was created in an attempt to prevent the destruction of assets or creation of debt the judge will want to see that there is no longer a need for the prohibitions contained in the order. They will be looking to see if the parties have divided the assets and transferred full control officially to one of them. For debts the judge will want to see why you want to incur debt. Liquidating a community property 401k to go on a vacation is not likely to convince a judge to drop the order, but doing it to save your house from foreclosure or pay for your daughter’s college tuition may be acceptable.
How to Lift a Restraining Order
With temporary restraining orders you have two options. The first is to simply wait until the order dies on its own. Eventually it will expire either by a deadline passing or the divorce being finalized.
If you are unable or unwilling to wait for the temporary restraining order to expire on its own you can file a motion requesting the court to lift or modify the order. This is commonly done in situations in which the order prevents one party from conducting their normal business but can also be done where the order prohibits them from seeing their children.
If the restraining order is permanent then the only option for lifting it is to request that the court lift or modify it. You will have to file a petition requesting that the order be lifted or modified and then set a hearing. At the hearing the judge will listen to all of the evidence and enter an order either dismissing the restraining order or modifying it.
Do I Need A Temporary Restraining Order In My Divorce?
Temporary Restraining Orders are issued in civil cases to prevent or restrain a party from taking an action. They do not force a party to do a particular thing, such as pay a bill, but they can tell a party not to do something, like cancel utilities. A Temporary Restraining Order does not typically have someone excluded from their residence, but there are exceptions. If a party is been violent or there is a credible threat of violence a Court can issue a Temporary Restraining Order that prohibits that party from returning to the residence. This is referred to as a “kick out order” and has higher requirements than a normal Temporary Restraining Order.
Temporary Restraining Orders are designed to keep the one party from harassing the other, destroying evidence, spending funds unnecessarily, incurring debts or hiding assets. The Temporary Restraining Order also shows the Court what you are requesting, such as temporary child support, temporary spousal support or a temporary award of property. The Temporary Restraining Order generally requires a hearing within two weeks of the date that it is signed. During these two weeks, your spouse has the opportunity to hire an attorney and the attorneys typically are able to discuss the issues so that, if possible, there can be an agreement in place before the hearing. If you and your spouse have not come to an agreement prior to the date of that hearing, there is usually time for some discussion of the issues at the courthouse prior to the Judge hearing your case.
If the Judge hears your case, he or she will typically render an order on that day. The ruling will be a Temporary Order that will probably contain a Temporary Restraining Order. It will generally cover those issues that must be decided on an immediate basis, such as, which party will remain in the marital residence, where the children will reside, who will have visitation and according to what schedule, who will pay child support and how much, and payment of bills. The order will be in effect until further order of the Court, typically until the final order, which is referred to as a decree, and which will generally replace the Temporary Order. The Judge will also assign one of the attorneys to draft the temporary order as he or she has rendered it.
Once the Temporary Restraining Order is in place any violations must be reported to the judge in a hearing for contempt. At that hearing the judge will hear evidence of the violation and give the other side an opportunity to defend their actions. Once the judge has heard all of the evidence they will issue an order. The order can include new orders that provide even stronger restrictions or address problems as wells a ruling of contempt. If a party is held in contempt of court they can be fined or jailed at the judge’s discretion.