Restraining Orders & Divorce: Are They Common?

Types of Restraining Orders in California

There are three types of restraining orders in California: emergency protective orders, temporary restraining orders (TROs), and permanent restraining orders. Emergency restraining orders are issued and go into effect immediately in emergency situations and with no notice to the other party. A temporary restraining order is a restraining order that, as the name implies, is for a short period of time. TROs typically last for 15 days, after which there is a hearing for a permanent restraining order.

Permanent restraining orders require a court hearing before they can be issued, and despite their name, are only issued for up to 5 years (though they can be renewed for additional periods). At the hearing for the permanent restraining order, the person that the order is being sought against has the chance to respond.

Domestic Violence Restraining Orders

If you are seeking a restraining order against your former spouse, you will likely need to file for a domestic violence restraining order instead of a civil harassment restraining order. Similarly, if you are seeking a restraining order on behalf of your child or children, you will likewise need a domestic violence restraining order.

Domestic violence restraining orders are important because they not only help protect victims of abuse from harassment, stalking, violence, and threats of violence, but they also address other related issues, including custody and child support.

Read our blog, "How A Restraining Order Affects Child Custody," to learn more.

How Restraining Orders Can Affect a Divorce Case

Just as a restraining order can seriously impact custody cases, it can also negatively impact divorce proceedings. From impacting your ability to see your children to requiring you to move out of the family home before you are ready, an active restraining order against you can make the divorce process infinitely more difficult to manage. Furthermore, instances of domestic violence and the issuance of a restraining order may be factored into important decisions, including custody, child support, and alimony.

In addition to protective orders issued in domestic violence cases, California also has an automatic restraining order that is issued when someone files for divorce and which applies to both parties. Keep reading to learn more.

Standard Family Law Restraining Orders

In California, there is something called a standard family law restraining order. This order is issued as soon as someone is served with divorce papers. Standard family law restraining orders restrict several activities that are directly related to the divorce process. These restrictions are outlined in California Family Code § 2040.

Under this restraining order, neither party is allowed to:

  • Take minor children out of state
  • Apply for new passports for minor children
  • Transferring, concealing, or in any way disposing of any property (including community, quasi-community, and separate property) without the written consent of the other party or a court order
  • Cashing, borrowing against, canceling, transferring, or changing the beneficiaries of any insurance policy held for the benefit of either party and/or their minor children, including life, health, and car insurance
  • Creating or modifying a nonprobate transfer that affects the disposition of property subject to the transfer without the written consent of the other party

You must understand these restrictions to avoid accusations of dissipation or hiding assets and to prevent problems that may complicate your custody and support agreements. If you are unsure if you can do something while going through a divorce, consult with your attorney for clarification.

Do I Need a Restraining Order for My Divorce?

Whether you need a restraining order from your former spouse is not an easy question to answer. It depends solely on your circumstances. If you believe you need a restraining order to protect you from harassment or a vindictive ex, you should speak with your attorney as soon as possible to get help with the process.

Furthermore, if you or your family are in immediate danger, you should contact law enforcement immediately. They can issue an emergency protective order, which can then be followed up with a temporary or permanent restraining order issued by the courts.

To discuss your case and whether you should request a restraining order, reach out to our law firm for help. Our experienced attorneys are prepared to help you today.