Impact of Temporary Restraining Orders on Divorce

Impact of Temporary Restraining Orders on Divorce

Judges are generally fairly willing to issue temporary restraining orders to protect domestic abuse victims.  Most people agree this is a good thing, because nobody wants to see an abuse victim be seriously hurt because she lacked sufficient evidence to get a restraining order.  There is one downside, however, and that is a risk that some people will falsify or exaggerate their situation to benefit from the restraining order.  In most cases, this is not much of a risk.  For example, if a young person who lives alone blocks their abusive boyfriend from contact, that will not cause much harm to the boyfriend and he may just agree to the order.  For committed couples, the situation can be very different. Let’s see how-

Use of the home

If a married couple shares a home, it can take several months for a divorce proceeding to decide who should live in the house.  Both spouses are generally entitled to live there in the meantime.  It can be hard for a splitting couple to work this out.  A spouse may try to shortcut this process by getting a protective order against the other spouse.  The spouse that is accused of abuse would be forced to move out and find somewhere else to live.  Finding a new home and hiring a lawyer to fight back can get expensive.

Child custody

Joint custody is generally the default in divorce. However, domestic abuse allegations will greatly change that calculus.  A temporary protective order can sometimes be used as evidence that one parent is abusive and should not be given custody of the child.  An unscrupulous spouse could also use the court-enforced separation as an opportunity to convince the child to “take their side.”  If a child is living with his mother for a year while the mother says the child cannot see his father because the father is abusive, that can lead to the child asking to be placed in the custody of his mother.  Such requests can have a big impact, especially for children who are closer to 18yrs of age.  Importantly, if one parent is awarded custody that parent is also likely to get child support payments from the other parent.

Fault and property division

Until the last few decades, divorce was generally awarded only if one spouse was at fault, meaning the spouse committed a violation like abuse or adultery.  In that setting, alimony or property was usually awarded to the victimized spouse partially to punish the abuser.  Today, most divorces are no-fault and when dividing property courts generally are not instructed to consider things like adultery or abuse.  Judges have a lot of leeway though.  For example, in Florida judges have to consider a long list of factors plus “any other factors necessary to do equity and justice between the parties.”  A judge may be willing to award more assets to a victimized spouse using this broad authority, and a copy of an old temporary restraining order can be used to show abuse to the court.

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