Filing for Divorce After a Temporary Restraining Order

Posted November 3, 2017 in Family Law by Michael Lonich.

For many people in abusive marriages, the question is not whether to file for divorce or stick it out in a violent marriage.  The question is how to file for divorce while remaining physically and financially safe from retaliatory spousal abuse. Audrina Patridge faced this exact question.  Until recently, Audrina was stuck in an abusive marriage where she faced an aggressive, controlling, and physically threatening spouse.  It is reported that Audrina wanted to file for divorce but she was scared that if she did, her husband, Corey Bohan, would retaliate with physical harm to Audrina, their one-year old daughter, or Audrina’s family members.  Like others in similar situations, Audrina was scared to file for divorce without additional protection.  Fortunately, the Family Court can provide additional protections for people in Audrina’s situation.  That additional protection comes in the form of a Domestic Violence Temporary Restraining Order (DVTRO). On September 18, 2017, Audrina was granted a DVTRO against Corey.  Audrina sought the restraining order as a protective measure for herself and her family members while she initiated divorce proceedings against Corey.

A DVTRO provides the abused spouse immediate, but temporary protection from the alleged abuser.  There are numerous protections available under a DVTRO, protections that go far beyond simply keeping the alleged abuser away from the abused spouse.  Additional available protections include, but are not limited to, child custody and support, an order for the alleged abuser to move out of the residence, orders that specify which spouse must pay debts, and property control.  The myriad protections available under a DVTRO address the reality of domestic violence situations; the abused individual needs to protect their physical and financial safety, as well as that of their children, or other family members, including pets.  For Audrina, the DVTRO enabled her to file for divorce with the confidence that she and her family would be safe from threats or acts of violence from Corey.  With the DVTRO in place, Audrina filed her petition for divorce on September 20, 2017.

When a DVTRO is issued precedent to or simultaneously with a petition for divorce, the terms of the DVTRO necessarily become the status quo at the start of the divorce proceeding.  Thus, it is important that an abused spouse obtain a DVTRO with as many protections as are applicable to their unique situation, as those terms will likely remain in place, regardless of the outcome of the domestic violence proceeding. By example, if the abused spouse requested a “move out” order and/or exclusive use and possession of the family residence, the alleged abuser will have to find alternate housing, and often, the alleged abuser will have to do so even after the DVTRO expires.  When child custody orders originate from a DVTRO, the Court will modify custody orders only in rare instances, and typically it will only do so after numerous court appearances, and/or other ancillary interventions that take place over many months, e.g., the alleged abuser having professionally supervised visitation, parenting/anti-abuse classes, etc.  In light of the above, it is critical that individuals who need a DVTRO to enable them to safely initiate divorce proceedings, consult with an attorney to carefully draft their DVTRO.

For more information about obtaining a DVTRO and/or a divorce in California, please contact our attorneys at Lonich Patton Erlich Policastri.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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