What is a Restraining Order and Can I Obtain One During My Divorce?

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Unfortunately, during divorce proceedings, the true character of many spouses is brought to the surface. In times of anger, physical violence may occur. If you find yourself in the unfortunate situation of fearing for the safety of yourself or your children, it is imperative you seek immediate protection. In order to protect yourself from future harm contact your Florida Divorce Attorney who may seek a Restraining Order or Petition for Injunction for Protection from Domestic Violence.

These injunctions may be sought by any party who “is either a victim of domestic violence… or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” 741.30 The injunction may cover yourself, or it may be sought by family or household members. Further, if you have a pending divorce proceeding, this does not bar you from seeking an injunction. However, you must note in the petition the pending divorce action.

A Petition for Injunction for Protection from Domestic Violence has many statutory requirements. In general, the petition must make specific factual allegations of the existence of the domestic violence, or fear of such violence and the relief sought. The petition requires: your name and address; your spouse’s address, place of employment, physical description and any aliases they may go by. You must note your relationship to the accused, your spouse, and document the pending divorce proceedings, as well as any other attempts to obtain an injunction against your spouse. You must then detail the acts or threats of abuse including the time and place they occurred. These instances may have been harassment, stalking, threats to commit physical violence, actual violence such as assault, battery, or threats to kidnap or harm a child, or the family pet. Unfortunately, you must be as detailed and specific as possible and this could be an emotional event to take on. Finally, you must then detail the relief sought. For instance, you may request exclusive use of the home and to enter an injunction to restrain your spouse from committing any acts of violence. You may also request a temporary time sharing plan be established for the minor children as well as temporary support. Further, some individuals request the court order the spouse to attend programs or treatment for their violent behavior.

After filing the petition, if the court finds there to be an immediate danger of domestic violence, they may grant a temporary injunction, lasting no more than 15 days, until a final hearing can be had. The notice of the petition and the hearing will be served on your spouse. At the hearing, the court will determine if there is reasonable cause to believe you are in danger of becoming victim to domestic violence. They will consider factors such as:

“1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.

2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.

3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.

4. Whether the respondent has intentionally injured or killed a family pet.

5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.

6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.

7. Whether the respondent has a criminal history involving violence or the threat of violence.

8. The existence of a verifiable order of protection issued previously or from another jurisdiction.

9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.

10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.”

If the court determines there is reasonable fear of domestic violence then the court will grant the injunction, “restraining the respondent from committing any acts of domestic violence” and can award any relief necessary and sought by the victim in their initial petition. The goal of the court is to protect you and your family while still maintaining the rights of the accused. Therefore, it is important to seek the aid of your Florida Divorce Attorney during these proceedings to ensure you are protected and proper evidence is presented to grant your injunction and provide you with some safety during this uncertain time.

Speaking to an attorney at our Florida office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5221 or complete an online contact form to get in touch with a member of our team today.

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