Texas Divorce Tips
One divorce attorney's reactions to family law issues.
Monday, April 20, 2009
Question from Seminary #7
Please speak to protective orders? Does a divorce have to be at least files before a wife can file restraining orders on her husband who might be harassing her or stalking her?
There's more on my web site here.
Most of these do require that a lawsuit has already been filed (or is filed at the time the protection is sought), such as a divorce or a paternity proceeding. And these are generally punishable by contempt. That is, you get the judge to issue the order, then you have the order served on the other party (to give them notice that they're ordered to do something or not do something). Then, if the other party violates the order, you have to set a hearing, give the other party notice, and then ask the judge to punish the other party for disobeying the order. So, it's not particularly quick, and not particularly cheap, but a judge can fine or jail someone who the judge finds to be in contempt of court.
In Dallas, Collin, Denton and several other counties, a Standing Order is attached to every Petition for Divorce which orders both parties to not mess with each other (such as by redirecting or opening mail, raiding bank accounts, taking the children out of state, and so forth). But to get any enforcement, you have to prove that the other side knew about the order, which usually means having them served by a process server or constable.
Then there's the Protective Order which normally arises from an arrest, and is issued by the judge or magistrate that sees the prisoner in jail and advises him of his rights. Here's how this works: Boyfriend ("BF") beats up Girlfriend ("GF"), who calls the police, who arrest BF and take him to jail. At the time of the arrest the police give GF a sheet of paper advising her of her right to request a Protective Order. While BF is in jail, GF goes to the same jail and fills out paperwork to request a protective order. The judge or magistrate will speak with GF, make sure she wants to do this*, and verifies that all the needed information is on the form. The judge signs the order and tells BF about it, and a copy of it is put in BF's personal property that he gets when he gets out of jail.
The Protective Order will typically order BF to stay at least 500 yards away from GF, GF's children, GF's place of employment, GF's residence (even if it's still BF's residence), GF's children's schools, and so forth. The Protective Order is faxed to the police or sheriff with jurisdiction at each of those locations. Now, if GF sees BF in a prohibited place, she calls 911, and the police immediately arrest BF and take him to jail until he can go in front of a judge to explain himself. This example talks about boyfriend and girlfriend, but the process is identical if the parties are married to one another.
*Judges are not wimpy about issuing Protective Orders, but when battered women learn that the batterer would be ordered specifically not to return to the home, the woman knows he won't be bringing his paycheck home, either. Because of the psychodynamics of the cycle of violence and the control issues of the batterer, the battered woman is so dependent on the batterer that she is unwilling to request the Protective Order.
I don't have any specific experience with stalking cases, and the victim should contact the police department.
There's more on my web site here.
Most of these do require that a lawsuit has already been filed (or is filed at the time the protection is sought), such as a divorce or a paternity proceeding. And these are generally punishable by contempt. That is, you get the judge to issue the order, then you have the order served on the other party (to give them notice that they're ordered to do something or not do something). Then, if the other party violates the order, you have to set a hearing, give the other party notice, and then ask the judge to punish the other party for disobeying the order. So, it's not particularly quick, and not particularly cheap, but a judge can fine or jail someone who the judge finds to be in contempt of court.
In Dallas, Collin, Denton and several other counties, a Standing Order is attached to every Petition for Divorce which orders both parties to not mess with each other (such as by redirecting or opening mail, raiding bank accounts, taking the children out of state, and so forth). But to get any enforcement, you have to prove that the other side knew about the order, which usually means having them served by a process server or constable.
Then there's the Protective Order which normally arises from an arrest, and is issued by the judge or magistrate that sees the prisoner in jail and advises him of his rights. Here's how this works: Boyfriend ("BF") beats up Girlfriend ("GF"), who calls the police, who arrest BF and take him to jail. At the time of the arrest the police give GF a sheet of paper advising her of her right to request a Protective Order. While BF is in jail, GF goes to the same jail and fills out paperwork to request a protective order. The judge or magistrate will speak with GF, make sure she wants to do this*, and verifies that all the needed information is on the form. The judge signs the order and tells BF about it, and a copy of it is put in BF's personal property that he gets when he gets out of jail.
The Protective Order will typically order BF to stay at least 500 yards away from GF, GF's children, GF's place of employment, GF's residence (even if it's still BF's residence), GF's children's schools, and so forth. The Protective Order is faxed to the police or sheriff with jurisdiction at each of those locations. Now, if GF sees BF in a prohibited place, she calls 911, and the police immediately arrest BF and take him to jail until he can go in front of a judge to explain himself. This example talks about boyfriend and girlfriend, but the process is identical if the parties are married to one another.
*Judges are not wimpy about issuing Protective Orders, but when battered women learn that the batterer would be ordered specifically not to return to the home, the woman knows he won't be bringing his paycheck home, either. Because of the psychodynamics of the cycle of violence and the control issues of the batterer, the battered woman is so dependent on the batterer that she is unwilling to request the Protective Order.
I don't have any specific experience with stalking cases, and the victim should contact the police department.
Labels: injunction, Protective Order, Standing Order, temporary restraining order, TRO
posted by Hal Davis | 10:43 AM
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