Impact of Domestic Violence and Restraining Orders

Restraining orders restrain an individual from undertaking specified actions with respect to another individual for a period of time or, in some cases, permanently. They are often utilized in cases involving domestic violence (DVROs), but courts can also issue automatic temporary restraining orders (ATROs) during a divorce. If you are seeking one of these orders, or you are concerned that you may be the subject of an order, the Doppelt & Forney San Diego divorce lawyers can assist you. We understand the impact of domestic violence and restraining orders on your future and your relationship with your children.

Most people think of domestic violence first when they think of restraining orders. DVROs are protective orders issued by courts that prevent alleged abusers from coming into contact with their alleged victims. California courts provide an expedited means for emergency orders to be issued in ex parte proceedings (those in which only one party is present).

To obtain a DVRO, the petitioner must file an application showing that the relationship qualifies under the applicable statute and that the party against whom the order is sought has engaged in certain prohibited conduct. A DVRO will prevent the alleged abuser from coming into contact with the petitioner in any way as well as providing other protections, such as possibly requiring the other party to move out. The specific conduct is contained in California Family Law Code Sections 6203 and 6320 and can be either one or a combination of both.

Since an emergency order can be issued based on the allegation of only one party, these orders provide that a more extensive hearing must be held within a short timeframe, at which both parties will have the opportunity to testify and provide evidence within 21 days. If the court finds that the DVRO is justified, it can make the DVRO effective for up to five years (which can be extended).

Failing to comply with the terms of a DVRO can result in significant fines and jail time; in addition, any conduct violating a DVRO that also constitutes criminal conduct can result in separate criminal charges.

In the midst of a divorce, DVROs can be problematic. Since divorces entail negotiating between spouses regarding a variety of matters, the DVRO may require the parties to work through intermediaries. This can make the process more complicated and less efficient, so retaining an attorney is especially critical. A DVRO likely will affect child custody, since a history of domestic violence is relevant to the best interests of the child determination that is central to custody decisions. In addition, a party subject to a DVRO may be precluded from obtaining spousal support.

ATROs are automatically issued in divorce proceedings at the time of the petition and summons. These ATROs are valid upon the Petitioner at time of filing and upon the Respondent at time of service. They prevent either party from unilaterally engaging in certain conduct without written consent from the other party or a court order, or both. An ATRO prohibits conduct that might work to the financial or other detriment of one or both parties before a divorce has been finalized, such as:

• Selling any community property;
• Borrowing money while using community property as collateral;
• Removing a child to another state;
• Concealing assets by transferring property to a private account or a third party;
• Transferring funds from a joint account to a separate account;
• Changing the beneficiary of or cashing in a life insurance policy; or
• Removing a spouse or child from vehicle or health insurance coverage.

The ATRO keeps the parties in more or less the same financial position as of the time that the divorce is filed in order to properly account for and divide community assets when the proceedings continue.

Failing to comply with an ATRO can carry steep penalties, including a citation for contempt of court, fines, jail time, or other penalties under California law. Depending upon the nature and seriousness of the violation, it could affect the division of assets or child custody matters. If you are in the midst of a divorce, it is prudent to obtain legal advice before you make any decisions that affect community assets or your children to avoid the risk of violating an ATRO.

If you are a party to a restraining order or believe that a restraining order may become a factor in your situation, it is absolutely critical that you understand the impact of domestic violence and restraining orders on your divorce. For advice, assistance, or legal representation, call the San Diego lawyers at Doppelt & Forney at 800.769.4748 or contact us online. We represent people in cities such as San Diego, Chula Vista, Oceanside, Carlsbad, Vista, La Jolla, Point Loma, Coronado, Del Mar, Ramona, El Cajon, La Mesa, and nearby communities.