Whether you want to protect yourself, your children, or your property there are methods for you to do so through the courts in Texas. What you need to figure out is the appropriate road for you to take when it comes to these subjects. A protective order or a restraining order could be options worth pursuing. However, understanding the difference between the two is essential to you being able to prevent harmful events from occurring. This is what we are going to be discussing in today’s blog post from the Law Office of Bryan Fagan.
Since both types of orders have the connotation that they have to do with protection and safety, it is reasonable for you to wonder what each of them is and how they are different. It has been the experience of the attorneys with the Law Office of Bryan Fagan that many clients and former clients have thought that these types of orders are the same thing. For starters, we can cover how these are not the same thing. A protective order and a restraining order are different from one another. Before we go any further, we should cover what those differences are.
Most notably, we can see differences in these types of orders in terms of how a violation of each can you in different positions as far as consequences are concerned. Protective orders are mini lawsuit that is often filed and heard concurrently with different types of civil lawsuits like child custody or divorce cases. There is a specific court in Harris County, for example, that only relates to protective orders and applications for protective orders. As a result, it is more difficult to obtain a protective order than a restraining order.
Restraining orders can be obtained during a family law case like a divorce. For example, let’s say that you have filed for divorce and have some concerns about your spouse trying to sell a property or close a bank account without your permission. You also have children in school and want to make sure that your spouse does not try to unenroll them from class or remove them from school. In that case, you file what is called a temporary restraining order motion which will be reviewed by the judge. This document is typically filed with your Original Petition for Divorce.
Once the judge reviews the restraining order request, he or she can decide whether to grant the request, modify the request or deny the request. The judge would then submit the order with their signature back to you and would be filed with the court, as well. The 14 days reflect that the judge expects you and your spouse to be able to negotiate the terms of your divorce within fourteen days. The temporary restraining order would expire but those orders would go into the temporary orders and would be effective for the remainder of your case.
Temporary orders are the marching orders related to your divorce that you and your spouse would be expected to follow. They include the dos and don’ts for your behavior which relate to your child, your property, and one another. A lot of the orders are simple and self-explanatory while others are more complex. For example, those orders which relate to child custody are frequently more complex than those which relate to other subjects. For this reason, it is a good idea for you to keep a copy of your temporary orders handy. You can also ask your attorney if you have any questions about the orders and what they mean- preferably before you sign those orders.
What can a restraining order protect you from?
In a divorce case we see restraining orders protect you from various bad behavior on the part of your spouse. The main goal of a restraining order is to keep your spouse from doing things that would hurt you in some way. This starts with you and your spouse not being able to physically harm one another. While a piece of paper does not necessarily offer you all the protection that you would like, it does put everything into writing that makes your spouse aware of the fact that a judge is prohibiting contact between the two of you. That does not mean that you cannot see your spouse, but it does specifically note that you cannot hit, strike, or otherwise harm the other person.
Next, your spouse would be prohibited from doing things like taking you off their insurance. After the divorce is over you will not be able to stay on your spouse's health insurance. However, during the case, you will remain on their insurance. This will allow you some time to do whatever research is needed to start to be able to find your health insurance. Your children would also be protected by temporary orders. After the divorce, your children would need to remain on your spouse's insurance unless a better option is available.
Bank accounts are a subject that comes with quite a bit of stress during a divorce. We know that divorce cases are not inexpensive for the most part. Hiring an attorney, paying court costs for hearings, attending mediation, additional childcare costs, and other issues are fairly typical during a divorce. As a result, you will need to be prepared with a revised household budget to be able to account for all these increased costs. However, while the divorce is ongoing your spouse cannot contact your bank and have you removed as an account holder or barred access from the account.
On the other hand, you and your spouse will both be prohibited from spending excessive amounts of money during the divorce. The temporary orders will likely allow for either of you to spend money on essentials and legal fees- that is it. What does this mean for your spending during a divorce? For one, you need to be careful about how you spend money during your divorce. Your budget is going to be strained more so than usual given that you will have the same expenses as always plus attorney’s fees and other items related to your divorce. It does not mean that you need to check with your lawyer before every use of your debit card, but big-ticket items do need to be checked on and thought about before you make that purchase.
An item that people frequently have questions about in your situation relates to the payment of debt. There is something about a divorce that causes people to assess their situations and determine if there are any loose ends that need to be tied up. Paying debt may be one of those loose ends that you need to look at. If you want to be able to pay down debt that is a noble goal. However, you should not pay large amounts of money towards a debt during the divorce. For one, your temporary orders probably prohibit you from doing so.
Another consideration is that the debt may become part of your divorce community property division. Changing the amount of debt that you owe may change how your community property division occurs. Debt incurred during your marriage is divisible in the divorce. That does not mean that all debts will be divided equally, it just gives the court an option to divide that debt. You should review your temporary orders closely to determine what sort of spending is allowed during your case.
Protective Orders- what consequences are there for a violated order
If you are successful in obtaining a protective order, then you need to be aware of the consequences associated with violations of the order. For one, your spouse may be subject to criminal or civil penalties for their having done so. Criminal penalties usually include jail time depending upon the nature of the violation. Civil penalties are things like fines, court costs, and being made to pay your attorney's fees.
Restraining orders usually do not have criminal penalties tied to them although it is possible that they could. For one, the most common result of violating a restraining or temporary order is to be held in contempt of court. Violations of an oral or written order of the court can result in a contempt finding. Contempt can mean fines assessed against you and depending upon the severity of the violation, possible jail time. Missing child support payments on a repeated basis could result in your spouse having to pay your attorney’s fees, fines to the court or even risking jail time.
What to do if you are in harm’s way
Finding yourself in a position where you are in danger of being abused is a serious situation. In that case, you would need to have a plan to protect yourself and your children. Having a plan is essential to keeping yourself safe. You can wander into a dangerous situation involving your spouse and violence, but it is hard to wander out of it without risking your health and well-being. Now is the time for you to think through what kind of plan is necessary to keep yourself out of harm’s way while you navigate the divorce process. Where should you begin?
First, you can think about the best way to keep yourself safe in your home. If you know that your safety has already been compromised at home, then it could be time for you to leave. Packing a bag with essentials like clothes, medication, work equipment, personal items, and cash is a good idea. Doing the same for your children- along with their school items- is what may need to happen for you to be kept safe. Talk to your children, depending on their age and maturity, about how to leave the house as quickly as possible. This means knowing where to exit, where to meet, and how to get into a car. Time is of the essence in situations like this.
When your spouse is home, it is best to stay out of rooms with sharp objects. Rooms that have heavy items should be avoided. Firearms should be locked, and ammunition stored separately from the weapons. These are basic protections that you should be aware of. Know in advance which doors have locks and which do not. Keep gas in the car and the keys close by. These are precautions that ordinarily would seem over the top or unnecessary but in these types of situations, they can be essential. Make copies of files on the home computer or upload them to the “cloud” so that you can access them from anywhere. You may not be able to gain access to the home again for some time so do not assume that you can come back and get files or documents any time that you want.
Next, you will need to find a place to live temporarily. Preferably this will be a place that is both safe and somewhere that your spouse will not know where to find you. A reasonable location would be your parents’ home or a friend's house. However, keep in mind that your spouse would probably look to a place like this first and so this may not be the best option for you. You can think about places to stay in advance and begin to contact friends or relatives who could house you and your children temporarily. Or you may seek out the resources available to you in a domestic violence shelter. This is not the ideal place for you to be able to stay but considering the circumstances it may be your best option. You can also contact your church to determine if your religious leader has connections or knows of anyone in the church community who can help you in a time like this.
Once you have gotten out of your home and have found a safe place to stay then you have solved several of the issues that you otherwise may have problems with. From there, you should begin to look for help as far as obtaining A protective order or filing for divorce. Remember that a protective order is separate from a divorce then you would likely be looking at a scenario where you are filing multiple legal cases at once. However, the protective order application that you file has no fees associated with it. You would need to file for the protective order in the county where you reside.
As a part of your divorce, you can also seek a temporary restraining order from the moment your case is filed. Remember that a temporary restraining order is typically good for fourteen days but can be extended out to twenty-eight days if a request is made with the judge. The temporary restraining order would then be subsumed into the temporary orders from the divorce. There are basic temporary orders which can be created quickly by an experienced family law attorney. However, in your situation, you may need to consider creating orders that are much more specific to your situation.
One of the parts of your life during a divorce that you should keep a close eye on relates to spending and your access to bank accounts and credit cards. This is especially true if you are the spouse who does not handle the financial matters for your family. In that case, you should speak with your attorney about options to make sure that you are not denied access to your checking or savings accounts so that you can still spend money on essential items during the divorce. You can list out identifying information for these financial accounts so that they are noted in the temporary orders.
Next, you and your spouse can negotiate on who is responsible for paying various bills during the divorce. Most courts would be apt to have whichever spouse typically pays the bills continue to do so during the divorce. For example, if your spouse is the primary wage earner in your family then it is likely that he would be responsible for paying most of the household bills. This is true even if he ends up leaving the home and living apart from you and the children. However, that does not mean that this will always be the case and you should also be thinking about how you can begin to earn an income on your own.
Without a doubt, will be facing several challenges in your life regarding protective and restraining orders soon. This is not an easy time, but it is one where you can devise a plan and meet challenges on behalf of yourself and your family. Having an experienced family law attorney to advocate on your behalf is a tremendous advantage to have in this situation, as well.
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