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Protection Orders During Your Divorce: What standard of proof do you need?

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 Although you can get a Temporary Protection Order at any time by going to your County Court, if you are anticipating a divorce or a Petition has already been filed in your Divorce, you are better off applying for a Protection Order in the District Court where you have filed for Divorce. Why? Because the facts that support your need for a Protection Order are fadcts that you would want in front of your divorce judge for a number of reasons, especially if you have custody issues in your case and the "imminent danger" has an affect on the children.

When you apply for a Temporary Protection Order, the same standards apply regardless of what court you are in front of (County Court or District Court where you filed for divorce). The standard of proof for entering a Temporary Protection Order is a finding of imminent dangerto the Petitioner. When you file for a Temporary Protection Order, the other party is not present, therefore, you alone are presenting evidence but the facts must present as imminent danger. The imminent danger must relate to the following:

  • Assaults and threatened bodily harm
  • Domestic Abuse (acts or threats of violence) or
  • Stalking

When the Court issues the Temporary Protection Order it also automatically sets a Show Cause Hearing so that the other party may show cause for why the Temporary Protection Order should not be made permanent. (burden is on the respondent) This hearing must be held in the next 14 days.

Normally a Show Cause Hearing is heard and the party whom the Protection Order has been issued against has an opportunity to defend themselves against the allegations that lead to the Temporary Protection Order. However, in a divorce action, if both parties agree, the Temporary Protection Order can be extended until the divorce case is complete and the decision to make the Temporary Protection Order permanent can be made by the judge as part of the final orders in the divorce case.

Extending a Temporary Restraining Order during the Divorce may be in the best interests of both parties for the following reasons:

  • The heated emotions of the moment may be significantly resolved by the end of the case.
  • Permanent Protection Orders are severe. They cannot be modified or removed for 4 years.
  • There is a different, lower standard for a Permanent Protection Order (see below) but, at a Show Cause Hearing the person who has the Temporary Protection Order against them has a chance to refute the petitioners claims.

Bottom line is that if Petitioner loses at the Show Cause Hearing they end up with no protection order at all and alternatively, if the Respondent loses, they end up with a minimum of a 4 year, non modifiable Permanent Protection Order to deal with. So there is risk on both sides. If you keep the Temporary Protection Order in place, there is time for the circumstances to resolve themselves without the 4 year punitive nature of the Permanent Order and without the chance of going unprotected during the pendency of the divorce.

It is important to note that if the Permanent Protection Order is granted, the party whom the Order is against cannot carry a gun legally during the time the Order is in place. This can be a career changing event for a police officer or other person who's job requires them to carry a gun.

If both parties do not agree to extend the Temporary Protection Order, then the Show Cause Hearing will be held and the Judge will have to decide if a permanent Protection Order is warranted. There is no requirement for imminent danger as before. Instead, the standard for granting a Permanent Protection Order is a finding that the incident of assault, threat of bodily harm act of domestic abuse or stalking "actually occurred" and that these acts are "reasonably likely" to reoccur.

Here is the strategic question for the client and their attorney: Given the standard for Permanent Protection Orders, should you insist on a Show Cause Hearing or agree to extend the Temporary Protection Order until the end of the Divorce Action. The answer to this question depends on all the facts in the case as well as the known propensities of the Judge and needs to be dealt with on a case by case basis.

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