What is a Restraining Order and How Do I Get One?
During your divorce process, situations may arise that require the court to get involved, and one tool you have at your disposal is a restraining order. To protect yourself before, during, or after your divorce is finalized, you can obtain a restraining order against your Ex (or if it’s before your divorce is finalized, your Soon-to-be-Ex or husband *). This article provides information and answers to common questions women have related to restraining orders.
What is a restraining order?
A restraining order stops someone from doing something harmful to you. The harmful activity can be posting negative comments about you on the Internet, stealing money from your account, or even speaking to you.
Restraining orders are usually used for stopping someone from temporarily doing something that affects you, and typically, the acts themselves are nonviolent.
A very common example of a restraining order in divorce litigations is when your spouse drains a marital asset. Say, for example, you and your spouse have a joint bank account with all of your assets pooled together and that is the account you use to pay for your daily living expenses. Your spouse, during the course of your divorce process or litigation, completely drains the account so that there is nothing left in the account for you to use.
This is when a restraining order is a great tool. You and your attorney could file an Emergency Temporary Restraining Order, which would order your spouse to stop spending any money he took from the account, and to freeze any other activity within that account.
Another thing to keep in mind is that every state treats restraining orders differently. Make sure you ask your attorney the specific uses, benefits, and downsides of filing a restraining order in your state.
If you are thinking about, or beginning a divorce, learn more and check out “The Top 5 Frequently Asked Questions About Divorce.”
How do I get a restraining order?
It’s important to remember, however, that a restraining order, at the end of the day, is just a piece of paper. While it’s a great tool that the legal system allows you to use, you will have to stay on top of your spouse to ensure that they are in fact following the provisions of the restraining order.
Keeping the previous example in mind, if your spouse drained the marital account, you would want to alert your attorney immediately so they begin drafting a Motion for a Temporary Restraining Order. In certain cases, it can be an Emergency Motion, and the judge will hear it faster. Every state is different, but in Illinois, for example, you have to prove that you are entitled to what you are asking for, that you suffered harm because of your spouse’s action, and that there is no legal remedy for what your spouse did. While this sounds daunting, the example we are considering meets all these requirements easily. You need to prove that you had a right to the account, you used it for your everyday living expenses, and that you are burdened by your spouse’s actions.
There’s so much paperwork involved with a divorce. Read this piece, to understand specifically what “Divorce Papers” are.
How long do restraining orders last?
Again, this depends on the type of restraining order and the state you reside in.
Following the example in this article, you would want to make sure that you ask in your Motion for Temporary Restraining Order for your spouse to provide information about where he sent the funds; that the funds be frozen; and that he returns the funds to their proper bank account.
Once you present your motion in front of a judge, assuming it is granted, he or she will write an Order giving your spouse a timeline to complete everything that you are asking for.
Moreover, if you agree to a restraining order with your spouse (such as you two agree not to speak to each other or post about one another on the Internet), these Agreed Orders state how long they will last.
What else must you know if you are a woman dealing with divorce? Begin here: “55 Must Do’s on Your Divorce Checklist.”
What happens if someone violates a restraining order?
Penalties for violating restraining orders differ based on the circumstance and the state. In Illinois, for example, if someone violates a restraining order, you need to file a Petition for Rule to Show Cause. This petition needs to show that a restraining order was entered and that your spouse violated it for no good reason.
If you are successful in your petition, the judge can hold your spouse in contempt of court, and set a bail amount or even send them to jail. Again, keep in mind that you would have to go back to court, file a new petition, and argue it in front of a judge before this occurs.
What is the difference between a restraining order and an order of protection?
One thing to keep in mind is that some states use restraining order and order of protection interchangeably. Be sure to ask your attorney what the proper language is in the state you reside.
The kind of lawyer you use DOES matter. Consider reading this piece on
Why it’s not in your interest to hire a cheap divorce lawyer.
Restraining orders typically stop someone from doing something harmful to you. Orders of protection keep someone away from you. Orders of protection have more bite to them, and you can file them ex-parte (meaning the other party is not present).
Restraining orders can also be filed ex-parte, but they are rarer, and sometimes, these are agreed upon between you and your spouse.
Another key difference is what happens when someone violates a restraining order versus an order of protection.
If someone violates an order of protection, there is a criminal charge against them. Restraining orders require more court appearances and judge intervention before the person is disciplined for violating it.
Something that you can use as a bargaining chip is changing your order of protection against your spouse to a restraining order. The logic behind this is that you still have protections in place, but it holds less severe penalties than an order of protection.
Conclusion
Restraining orders are a useful resource for women going through a divorce. It gives you a sense of security during and after your break up by providing you with guidelines as to what your spouse can and cannot do. This article provides insight into what restraining orders are, when to use them, and what to expect in court when you file them.
NOTES
Alexa Valenzisi is a 3L student in Chicago who is committed to child law and education law. She aims to work in education law or family law after graduation.
Whether you are thinking about divorce, dealing with it, or recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oftentimes complicated experience of breaking up and reinventing.
SAS offers all women six free months of email coaching, action plans, checklists, and support strategies for you — and your precious future. Join our tribe and stay connected.
*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”
