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How to File for a Restraining Order During Divorce

Domestic Violence: Protecting Yourself During Divorce

Filing for a divorce is usually a stressful period for most couples. However, marriages that involve domestic violence or abuse can often make a bad situation worse.

While emotions tend to run high during divorce proceedings, spouses in an abusive partnership often face an increased risk to their safety and wellbeing before, during, and after divorce. If you find yourself in a dangerous situation, you may be wondering what steps you can take to protect yourself and your loved ones from harm.

How to Get a Restraining Order During Divorce

The presence of domestic violence in a marriage can alter how divorce proceedings unfold. Common solutions in a typical divorce (such as mediation and negotiation) are often unwise if a marriage has a history of abuse or violence.

Fortunately, California state laws uphold certain precautions designed to protect those who have suffered domestic violence at the hands of a spouse or intimate partner.

What Does a Restraining Order Do?

Generally, there are 3 types of restraining orders in the state of California that enforce the following:

#1. Personal conduct orders

Rather than concentrating solely on physical distance, a personal conduct order is designed to protect against various means of communication and harm, such as:

  • Contacting, calling, or sending messages (such as text or email)
  • Attacking, striking, or battering
  • Stalking
  • Threatening
  • Sexually assaulting
  • Harassing
  • Destroying personal property
  • Disturbing the peace of protected person(s) (the people listed on the restraining order)

#2. Stay-away orders

A stay-away order is designed to maintain a certain physical distance (such as 50 or 100 yards away) between the person who files for the restraining order and the person who poses a threat to their safety.

However, stay-away orders offer more protection than a distance between two people. Generally, these particular orders can help enforce a distance between:

  • The protected person(s)
  • A protected person’s dwelling
  • A protected person’s workplace
  • A school or childcare facility attended by the protected person’s children
  • A protected person’s vehicle
  • Other important places that the protected person frequents

#3. Residence exclusion orders

Also referred to as “move-out” or “kick-out” orders, a residence exclusion order requires a person to move out of the dwelling where the protected person lives. They are permitted to take a limited amount of clothing and personal belongings until the court hearing.

Keep in mind that residence exclusion orders can only be requested in instances of domestic violence, elder abuse, or dependent adult abuse.

What Happens if Someone Violates a Restraining Order?

Those with restraining orders filed against them will be limited in various things, including some day-to-day activities. If restrained, consequences can include:

  • The inability to frequent certain places or do certain activities
  • Being forced to move out of their home
  • Reduced visitation time with children (or the inability to see children entirely)
  • The inability to own a firearm (in addition to selling or storing existing firearms in their possession)
  • Affected immigration status (in the event that a restrained person is attempting to obtain a green card or visa)

In the event that a restrained person violates any part of a restraining order, they will face jail time, a fine, or both.

How to Apply for a Domestic Violence Restraining Order

If you have suffered domestic violence at the hands of a soon-to-be ex, there are 4 mandatory forms you must complete:

  1. Confidential CLETS Information (Form CLETS-001)
  2. Request for Domestic Violence Restraining Order (Form DV-100)
  3. Notice of Court Hearing (Form DV-109)
  4. Temporary Restraining Order (Form DV-110)

If you feel uncertain or limited in your ability to prove that the nature of the abuse warrants a restraining order, you may also fill out 2 additional forms to prove that the abuse in question poses a direct threat to your safety and wellbeing:

  1. Description of Abuse (Form DV-101)
  2. Additional Page (Form MC-020)

You will likely need to fill out additional forms if you 1) have children with your partner or 2) wish to request spousal support or alimony. The state of California offers a convenient self-help guide to assist you with this and other questions or concerns you may have. Click here to learn more about the resources available in your local area.

What Proof Is Required to Get a Restraining Order?

According to California state law, you must meet 2 conditions to apply for a domestic violence restraining order:

  1. Someone has abused you.
  2. You have a close relationship with that abuser. This may include married or registered domestic partners, a partner you are already divorced or separated from, a person you're dating or used to date, a person you have a child with or a person you lived with/used to live with.

Furthermore, the abuse in question must meet at least one of the following criteria:

  • Physical abuse
  • Financial abuse
  • Neglect or abandonment
  • Treatment that has physically or mentally hurt you
  • Deprivation by a caregiver of basic needs that leads to physical, mental, or emotional suffering

How to Build Your Case Before Filing

Sadly, there are various hoops that an abused spouse must jump through to prove the existence of domestic violence to the court. Part of the process is your ability to prove the abuse you experienced warrants a domestic violence restraining order.

While there isn't one single way to accomplish this, there are best practices to keep in mind as you prepare to file for a restraining order. Your goal is to prove to the court that a restraining order is required to ensure your safety and wellbeing before, during, and/or after the divorce proceedings.

Here are some examples of useful evidence that may work in your favor:

  • Be willing to testify on your behalf. While taking the stand can be daunting, being open to using your voice to explain the suffering you endured at the hands of an abusive partner can drastically improve your odds of winning.
  • Ask any witnesses if they’d be willing to testify about the domestic violence on your behalf. This could include neighbors, relatives, friends, or surrounding professionals (such as a domestic violence advocate, therapist, or even a law enforcement officer who was called to the scene of abuse).
  • Medical documentation. This may include copies of medical records, treatments, and injury reports that stemmed from the abuse.
  • Photographs. Hang on to any photos you took of injuries and wounds sustained from the abuse, such as bruises, scrapes, and the like. Make sure you check for timestamps to document the abuse as accurately and convincingly as possible.
  • Any police reports. If you or a witness called the police department at any point during abuse, be sure to obtain copies of these to show the court.
  • Pictures of weapons or damage caused by your abuser. Consider keeping photos of objects your abuser may have used to harm you. While firearms are common, other household items are frequently used as weapons also, such as hair dryers or household appliances. Do your best to reflect and recall any relevant objects used against you. Hang on to any photographs of damage as well (such as holes punched in the wall, shattered objects, broken windows, etc.).

Are you a victim of domestic violence? If you feel that you’re in danger, it’s crucial to take swift action to protect yourself from harm. Chat now with a trusted advocate or call The National Domestic Violence Hotline at 1-800-787-3224.

We Prioritize Your Safety

At Burch Shepard Family Law Group, we know how complex and emotionally devastating family law matters can be. Divorces are hard enough without the presence of domestic violence. If you have experienced injury, assault, or violence at the hands of your partner, you’re not alone.

It’s crucial to take immediate steps to protect yourself and your loved ones from further harm. Our team is here to help you prioritize your life, security, and future.

Are you a victim of domestic violence? Our experienced divorce attorneys are here to provide you with the protection and peace of mind you deserve. Call (949) 565-4158 to request a consultation today.