Divorce proceedings are never pleasant, but some divorces are worse than others. In some cases, it may be appropriate for one spouse to seek an order of protection, (a court order that restricts one person’s behavior in a certain way), usually by making them stay away from someone else (in this case, their spouse) or refrain from certain behaviors. Here’s what you need to know if you’re interested in obtaining an order of protection.
Orders of protection in family court can be temporary, or permanent. In order to obtain a temporary order of protection, an application must be made to the Court by the filing of a family offence petition, and the petition must articulate on its face that a family offense was committed, a relationship between the accused and you, and that there is an imminent need for a temporary order of protection. The opposing party need not be present or even notified. The temporary order may extend until to the next court date or for a year as appropriate. A permanent order of protection, on the other hand, requires a showing that the person who you are seeking to restrain was notified of your application for an order of protection and you must prove to the Court by a preponderance of the evidence that a “family offense” was committed, that a intimate or familial relationship exists and that there is a need for the order of protection. Family offenses include acts such as:
- disorderly conduct
- harassment in the first or second degree
- aggravated harassment in the second degree
- assault in the second or third degree
- criminal mischief
- sexual abuse in the second or third degree
- menacing in the second or third degree
- reckless endangerment
- attempted assault
- identity theft
- grand larceny
- sexual misconduct
- forcible touching
- criminal obstruction of the breathing passage or circulation.
Aside from telling one person to stay away from someone else, orders of protection can restrain other forms of conduct as well, such as preventing someone from purchasing a firearm, keeping them away from certain places (such as your home or workplace), or preventing them from communicating with someone by phone, email, text, social media, or any other method.
The power of an order of protection is in its enforcement. Violating an order of protection is a crime and the police can be called to enforce the order by arresting the violator. Thus, an order of protection can act as a deterrent against undesirable behavior, by carrying the risk of incarceration for any offender.
If you’re in the middle of a divorce and feel you are being harassed or threatened by your spouse, you should speak to a qualified attorney, who can analyze your situation and help you take appropriate action. If you have questions about the best approach for you, contact Heather A. Fig, Attorney at Law, PLLC. Heather Fig is an experienced litigation attorney in the area of family and divorce as well as a mediator for over 15 years. To schedule a consultation, call our office at 631-419-6111 or fill out our contact form.