Divorce Restraining Orders & Proving Your Spouse is a Danger

Divorce, Domestic Violence, Legal Separation

Domestic violence is an all-too-common situation in the United States.  If your spouse is dangerous, what steps can you take to prove that to the court?  This blog will talk through what’s necessary to obtain divorce restraining orders.

Under the Domestic Violence Prevention Act (DVPA) in California, set forth in Family Code Sections 6200-6409, domestic violence is abuse, as described in Section 6203:

(1) To intentionally or recklessly cause or attempt to cause bodily injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

(5) Abuse is not limited to the actual infliction of physical injury or assault.

Further behaviors that “could be enjoined” pursuant to Section 6320(a) are as follows:

“…molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.”

If you feel you are being abused by your spouse or domestic partner, you can take steps to protect yourself by obtaining a Domestic Violence Prevention Order (DVPO), commonly known as a restraining order.

How to Start the Process

The first steps to obtaining divorce restraining orders is to gather the facts and evidence you have of the abuse. This may include:

  • photos
  • police reports or records
  • witnesses who have seen the abuse and who can testify
  • notes, emails, text messages, phone messages, letters you have kept
  • your own recollections and true version of the events that have harmed you

Remember, the abuse does not have to be physical to be enjoined. If you suffer emotional abuse that is every bit as harmful as physical abuse, and could include such things as being controlled financially, being yelled at and belittled, being isolated by the abuse, being cut off from family and friends, you may consider divorce restraining orders. When your abusive spouse has done any of the things described in Sections 6203 and 6320(a) above, you can seek a restraining order.

Submit Paperwork

Generally, the first thing you do after you prepare your paperwork is to submit the forms to the court without notifying the other person you are doing so. This is to protect you and any family members who may be protected by your requested orders. 

The court does not charge any filing fees for domestic violence cases. Pending the first court hearing, the court may issue a temporary restraining order, which you can have personally served on the abusive person, or you can have a law enforcement officer do this for you. A law enforcement officer who has a copy of the restraining order on California’s Law Enforcement Tracking System (CLETS), which occurs as soon as the order is sent to the Sheriff or Police Department where you file, can also notify the restrained person of the order by phone. This has the same effect as personal service.  

How to Address Abuse

Once the other person is served and both parties attend the court hearing, the judge can decide to grant the protective orders or divorce restraining orders, in full or in part, or not at all.  You may want to have an attorney guide you through this process as it is complicated and emotionally stressful.

If the court does issue a “permanent restraining order” at the first or any subsequent hearing or trial, this order could last up to five years. After that, if you request an indefinite extension, the court could give you what is essentially a lifetime restraining order against your abuser. You can protect yourself and your children from harm, get the abuser out of your house and keep him or her away from you, your job, your car, and from contacting you by any means. You could even obtain child support and custody and visitation orders.  

Other than the Family Court orders, if you suffer serious abuse, particularly physical abuse, you could report the abuse to law enforcement and the other person could be charged with a crime.  In that case, there is an entirely different process but if the person is charged and a criminal case is filed, the court should automatically issue a Criminal Court Protective Order that is separate from the Family Court orders.  These procedures can be, and quite often are, started and tracked simultaneously.

You can speak to us if you believe you are the subject of domestic violence abuse. JWB Family Law has years of experience in San Diego County with divorce restraining orders and abuse cases. All communications we have once we develop a lawyer-client relationship are completely confidential.

Call us at 619.234.6123, or contact us via email if you would like to have an initial conversation about how we can help with your particular case.

The Importance of the CFLS Designation

A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriagechild and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.

Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.

Surviving a second divorce

Finances tend to be more complicated as second divorces generally happen later in life when folks have accumulated more assets.

California divorce rates and facts

Recent divorce studies found that disagreeing about finances on a regular basis, lacking a college education, when one or both spouses are alcoholics, and being in a low income bracket are all linked with a higher divorce rate.

Should you file for divorce before the holidays?

The holidays are right around the corner, and if you are seriously considering filing for a divorce, you may be struggling with the thought of filing before the holiday season. While there is no good time to file for divorce, there are pros and cons to filing before...

Should You File For Legal Separation or Divorce?

Separated but not legally separated: Many people leave their partners on a trial basis and are living separately; however, they want a trial separation to see whether they can work things out.  They often wrongly assume that after they leave, they are “legally...

How to find success with a child custody case in California

What do Judges look for in deciding custody and visitation cases? In custody and visitation cases in California, the biggest consideration is the best interest of the child(ren). In deciding what is in a child’s best interest, the Court considers stability, frequent...

Alternatives to Divorce: Mediation as a Solution to COVID

Divorce can be a difficult process. It presents its own set of challenges: making the decision to file, deciding who stays in the family home, sharing the children, and sparing them the angst and anxiety you may experience. Add the COVID pandemic and all of a sudden,...

Is Domestic Violence a Felony?

Yes, domestic violence can be a felony. A criminal case begins when someone reports an incident of domestic violence to law enforcement. If an arrest happens, criminal charges may be filed by the District Attorney. What is considered domestic violence? California...

How is Spousal Support Calculated?

In California, there are two types of spousal support: temporary and permanent (or long-term support).  Temporary support is support that is ordered before your final judgment of dissolution. Permanent or long-term support is ordered either at trial or through...

How Long Does It Take to Get a Divorce in CA?

If you plan to file for a divorce in the state of California, you're probably wondering how long the divorce process will take to complete. The answer to that question is—it depends. Under California family law, a couple cannot be divorced until at least six months...

JWB Family Law Adds Anne B. Howard ESQ., as a Senior Associate Attorney

JWB Family Law is expanding its team to welcome Anne B. Howard, ESQ, as a Senior Associate Attorney. Anne brings extensive expertise in family law to the team, specializing in child support, paternity, asset, and property division, and divorce. “I was drawn to the...