Restraining Orders

Restraining Orders

Understanding Restraining Orders

A restraining order is a legal order that a person (the protected person) can file against another person (the restrained person) who is abusing, stalking, threatening, or harassing the protected person. Additionally, a restraining order can be filed against someone who is threatening to or already has destroyed a person’s personal property, which can include a person’s business.

A restraining order can also extend to prohibit the restrained person from contacting the protected person’s family members or business associates. These types of restrictions are only applied if they are deemed necessary to keep the protected person away from physical or mental harm. 

A restraining order can mandate that a person is not allowed to contact, stalk, harass, attack, or threaten another person. Additionally, a restraining order can require that the restrained person stays away from the home, business, or neighborhood of the protected person. The protected person can even file a restraining order to legally remove someone from a shared home if they believe that person is a threat.

When someone files a restraining order, they are actually filing a Temporary Restraining Order (TRO). In the state of California, the TRO lasts for about 20 to 25 days at which point there will be a court hearing. During the hearing, both sides and their family law attorneys present their cases and a judge determines if a Permanent Restraining Order is necessary for the mental and physical health of the person filing the order. If a Permanent Restraining Order is issued, then the judge determines the specific measures that must be followed by the restrained person.

Contrary to popular belief, Permanent Restraining Orders are not permanent and typically last for approximately five years, after which the terms of the restraining order are lifted and the person must reapply for a new restraining order if they believe that it is necessary. If you need help reapplying for a permanent restraining order, contact the law offices of Lonich Patton Ehrlich Policastri. 

When most people think of restraining orders concerning family law, they think of domestic violence restraining orders (DVROs). However, restraining orders can also be used to prevent a former spouse from actions that could be detrimental to financial assets or a family business as well.

You can file a restraining order by submitting a form or by hiring a qualified restraining order attorney to file the legal form. Hiring a restraining order lawyer is highly recommended since a trial is typically required for the restraining order proceedings.

An automatic temporary restraining order (ATRO) is a legally binding and mutual agreement between two parties of a divorce proceeding. ATROs are automatically granted during divorce proceedings to protect the spouses’ shared property while it is in the process of being divided.

It is also important to keep in mind that an ATRO is in effect while a divorce is pending. ATROs protect spouses by legally preventing:

  • the removal of children without the consent of the other spouse or court order
  • the clearing or closing of joint accounts
  • taking out a loan or collateral on shared property
  • changing or ending shared life insurance policies
  • the sale or purchase of major property without the consent of the other spouse

Since simply bringing up the topic of divorce can ignite a fury of impulsive and irreparable actions, some of our clients choose to file a temporary restraining order before they file for a divorce to ensure that their shared property and parental rights are protected. In some cases, that quick and decisive step can save a spouse from serious financial or emotional hardship.

At Lonich Patton Ehrlich Policastri, we have extensive experience in helping clients obtain restraining orders to protect them from physical and financial harm

Types of Domestic Violence Restraining Orders

Many cases of domestic violence between spouses typically end in a divorce. Due to the complexity of divorces with domestic violence, it is advised to hire an experienced restraining order attorney to protect yourself, your children, and your personal property.

At LPEP, we recognize that the stress of a divorce can lead to violence, even when there is no history of domestic violence prior to the divorce action. Our family law attorneys are prepared to take quick and decisive action to obtain restraining orders when domestic violence occurs or is threatened. We are committed to helping protect victims of domestic violence.

Filing for a domestic violence restraining order (DVRO) can be an intimidating and confusing process. Some of our clients simply cannot fathom dealing with the extra strain of paperwork during an already stressful time.

Our family law attorneys at LPEP are here to help you understand your rights to protect yourself, your children, and your property. There are several types of DVROs and knowing which one to file is an important step in the legal process.

  • Emergency protective order (EPO) – This type of order is requested by the police in the immediate aftermath of a domestic violence dispute. Judges are available 24/7 to respond to a request to issue an EPO, which lasts five to seven days. An EPO gives a victim protection for a few days so that they may have time to file a temporary DVRO. 
  • Domestic violence temporary restraining order – This type of DVRO is awarded when a person or their restraining order lawyer files for a DVRO. It is in effect for no more than three weeks at which point there will be a court hearing to determine if a permanent restraining order is in the best interests of the victim. 
  • Ex parte order  – This type of order can be issued by the court without notifying the alleged abuser. It is typically awarded in emergencies such as protecting children from harm and is usually temporary in nature. In order to be granted an Ex parte order, the victim must prove that great harm or injury would occur if the immediate action is not taken to protect them. These orders are temporary and only last until the hearing in which the judge determines if a permanent restraining order should be granted.
  • Restraining order after hearing – This type of order is issued after a court hearing and after the court sets specific restrictions for the protection of the victim. Also referred to as a permanent restraining order, it can last up to five years and be renewed if necessary. 
  • Criminal stay away protective order – This type of order is filed by the district attorney and is issued to protect people during a criminal proceeding. If the defendant is found guilty of the criminal charges, then the stay away protective order will be in effect for three more years after the trial is over. Victims who still feel threatened after three years may file for an additional restraining order.

It is important to note that although restraining orders are civil, failing to comply with certain aspects of the restraining order is a criminal offense. 

If a restrained person disobeys the terms in the restraining order, they may have a criminal charge on their record and will face fines, jail time, or both.

Filing a Restraining Order to Protect Financial Assets

Divorce proceedings tend to bring out the worst in people and may cause spouses to act with malice, even if it is contrary to their nature. It is not uncommon for spouses to freeze or empty accounts, attempt to destroy their spouse’s business by calling their associates or clients, or alter life insurance policies.

If a spouse feels that their financial freedom or property is threatened, they may file a temporary restraining order to prevent their spouse from making major financial changes that can have detrimental consequences.

Spouses who want to protect their business or their financial assets have the right to file a restraining order if they believe that their spouse has the intent to destroy their financial assets. Restraining orders protect property from damage and this principle allows a judge to issue a temporary restraining order to protect their financial assets.

Financial restraining orders can allow spouses to legally prevent:

  • The clearing of bank accounts by one spouse(This is in case the protected spouse believes they are at risk of having their money removed from the account and thus becoming financially dependent on the other spouse)
  • The sale of major assets such as a house, car, or business
  • The contacting of business partners and clients to keep the restrained spouse from destroying the protected spouse’s business during the divorce proceedings
  • The borrowing of shared assets or allowing such assets to be used as collateral
  • The cancellation of insurance so that the restrained spouse may not cancel the protected spouse’s insurance
  • The clearing or withdrawing of retirement assets, which may be challenging to replace after their removal

In addition to protecting financial assets, a restraining order may be filed if one spouse feels threatened that the other will leave with their children. A temporary restraining order can also legally prevent one spouse from running off with their children.  

Our attorneys can help obtain restraining orders to protect the financial interests of a business. It is not uncommon for a spouse to take actions that are detrimental to a family business during a divorce proceeding. Our team of family lawyers can work with the courts to obtain restraining orders that will prevent a spouse from contacting clients, contacting tenants in investment properties, colluding with business partners, and misusing the financial assets of a company.

The team of family law attorneys at Lonich Patton Ehrlich Policastri is one of the largest firms in San Jose. Our large team of qualified-trial attorneys allows us to have the resources to take a genuine interest in our clients. We have decades of experience protecting our clients in San Jose with complicated family law matters involving restraining orders to protect financial assets or people involved in domestic violence cases. This first-hand experience ensures that we provide strong representation in a timely manner.