Types of Restraining Orders in a Divorce
The decision to end a marriage by filing for divorce is a painful one for most people, but it can also be frightening for individuals who experience domestic violence. Instances of domestic violence are distressingly common; according to some estimates, one in four women and one in seven men have been the victims of severe physical violence by an intimate partner in their lifetime. Due to the risk of provocation inherent in filing for divorce, individuals experiencing domestic violence should familiarize themselves with divorce-related restraining orders with the help of a Stockton divorce attorney.
Automatic Temporary Restraining Orders
Automatic temporary restraining orders (ATROs) are the most common divorce-related restraining orders because they are issued automatically upon the filing and service of divorce papers. The provisions of ATROs are located on the second page of the California family law summons. ATROs prevent both spouses from:
- Taking any minor children out of the state without the written consent of the other party
- Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance policies
- Transferring, encumbering, hypothecating, disposing of, or concealing property without the written consent of the other party
- Creating a non-probate transfer or modifying a non-probate transfer in a manner that affects the disposition of the property subject to the transfer without the written consent of the other party
ATROs are aimed at preserving the status quo during the pendency of a divorce, but they do not address domestic violence issues.
Temporary Restraining Orders
Temporary restraining orders (TROs) are court orders that protect a person (the “protected person”) from being physically or sexually assaulted, harassed, threatened, stalked, or contacted by another person (the “restrained person”). TROs to prevent domestic violence may be obtained ex parte — i.e., by one party only (usually the victim) without the other party’s knowledge or presence. If the judge issues the TRO, he or she will schedule a hearing to determine whether to issue a permanent restraining order. The protected person must then serve a copy of the TRO on the restrained person. The TRO remains in effect until the date of the hearing.
Permanent Restraining Orders
While TROs may be obtained ex parte, permanent restraining orders may be issued only after a hearing in which both parties are present. At the hearing, each side will present his or her case as to why the permanent restraining order should or should not be issued, accompanied by any relevant evidence. If the court finds by clear and convincing evidence that domestic violence has occurred, he or she may issue a permanent restraining order for a duration of up to five years. Permanent restraining orders may be extended, modified, or terminated at the request of one party or by the stipulation of both parties.
Get Help from a Stockton Divorce Attorney
If domestic abuse is likely to be an issue in your divorce, please consider contacting an attorney as soon as possible to ensure that the proper legal safeguards are in place. To get started, get in touch with a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.