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Should you automatically get a restraining order when you file for divorce?
Results so far:
| Yes | 25% | 16 votes | Total: 64 votes | |
| No | 75% | 48 votes |
Yes
by Brian Arnold
Created on: August 28, 2011
First off, I am a divorce attorney and this may sound cynical by stating "yes, when you file for a divorce you should get a restraining order." One thing that needs to be clarified is that a restraining order is different from a protective order. A restraining order does not stop someone from communicating with their spouse or children, it simply restrains them from harassing or harming them. This should be common sense, but I have seen too many people do the wrong thing after a divorce has been filed, and because they do the wrong thing it hurts them in their custody battle for the children.
Most people when they file for divorce prearrange what they are going to do, i.e. they find new housing, transfer over money into a new account, or plan to file while their spouse is out of town. All of these prearranged actions cause stress and can lead to rash decisions that can harm someone, or the children. A restraining order would solve most of this. A restraining order would help if there was a required hearing within 10 days from granting the restraining order. This way it would provide the other spouse a chance to show the court that they are going to be adults as they go through the process of divorce, and most importantly both people should show the judge that the children are the real concern.
To say "no, you should not be able to get a restraining order" does not meet the challenge of dealing with high emotions and children in a civilized manner after a divorce has been filed. Like I stated earlier, it should only be a temporary restraining order, but a restraining order none the less. Restraining orders only restrain people from certain actions. You could have a restraining order in a divorce action be a little different than other orders. For example;
1) The restraining order could be short term unless there is a hearing where a threat of violence is actually substantiated.
2) Still allow communication through text, telephone, or email.
3) Set up minimum parent time during the temporary restraining order according to state statute.
4) Allow for sole possession of certain property that is inherit in being able to live.
5) Allow for the other spouse to retrieve items of personal property with an officer to keep the peace.
All around a restraining order is going to keep people honest and acting like adults. Divorce is stressful, and I have seen many clients that have drove themselves crazy dealing with the thought of "what if" after they file the divorce documents. A restraining order will allow the courts to have control of the parties involved and provide a clearer avenue for the people getting divorced to understand the procedure, and to have peace of mind.
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No
by Janet Grischy
Created on: July 16, 2010
You should not automatically do anything when you file for divorce. This is a tough and stressful time, but you should try to keep yourself off autopilot as much as you can. Think about every move you make. Sometimes a restraining order is an obvious necessity, but sometimes it is a judgment call.
When to get a restraining order
If your spouse is physically attacking, harassing, or threatening you or your children, then protect yourself. Particularly if there are children involved, safety is a priority. You should keep in mind, though, that a restraining order alone is not always effective. In addition to getting the court order, you must take measures to secure your home and protect your family.
When you feel that you need a restraining order, it is a sign that you need to change your locks and make sure that all your windows cannot be opened from the outside. Do not change your phone number, but begin screening your calls, saving any hostile or threatening messages from your ex. It is illegal to threaten someone.
Tell your friends about your problem, and let them help you. Become alert to your surroundings and more cautious in your behavior.
When to avoid a restraining order
If you and your spouse are trying to have an amicable divorce, do not get a restraining order. Instead, avoid talking to your former spouse when he or she is angry, and avoid him or her when you are not in control of your anger as well. Try mediation to work out the details of the divorce, and if you still cannot agree, then work through your lawyers or paralegals rather than face to face.
Judgment calls
When you divorce, you may feel that you are seeing a side of your former spouse that you did not even know existed. However, he or she is still predictable; this is still the person you knew. Be cautious, but remember to be understanding.
Often ex-spouses feel insulted or belittled by restraining orders. Do not avoid getting one for that reason, but understand that your ex may see a restraining order as a kind of attack. The mere existence of the order can cause a surge of anger that you should be prepared to handle.
To summarize, if you feel in any way endangered get a restraining order, and take measures to secure your safety at the same time. Then avoid your former spouse.
If you and your ex-spouse are able to work together on arrangements for the divorce, then do not get a restraining order. Treat your former spouse with respect and courtesy, and expect the same.
If yours is not a friendly divorce, try to avoid getting a restraining order unless you feel that you are in danger. The most successful divorces leave the possibility of true communication open, at some time in the distant future. Get a restraining order if you need one, but do not automatically assume that you do.
Learn more about this author, Janet Grischy.
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