Getting a Restraining Order in a California Divorce

Types of Restraining Orders

A restraining order can protect you from abuse or harassment during a separation or divorce. There are two common types of orders used in divorce: a domestic violence restraining order and a civil harassment restraining order. Each is used to target a different set of people.

1. A domestic violence restraining order is used to obtain protection from:

  • A spouse, former spouse, domestic partner, person you have dated or lived with intimately, or person who is the other parent of your child, or
  • Someone who is closely related to you, such as a parent, child, brother, sister, grandmother, grandfather, or in-law.

Restraining orders in California are granted to protect you from abuse, which means causing, attempting to cause, or threatening bodily harm or sexual assault, or molesting, stalking, or striking you. To obtain a restraining order, the abuse or threats must have been recent. You can also include your children and other family member in your request for a restraining order.

Restraining orders include protection orders, stay-away orders, and “kick-out” orders. A restraining order requires the abuser to have no contact with you, your children and any others you list in your request. A “stay away” order typically specifies that the abuser must stay at least 50-100 yards away from you, your children, your home, your vehicle, and your job. A “kick out” order requires the abuser to leave your home and take only their clothing and personal possessions. A restraining order can also forbid the abuser to damage any of your possessions or property. Any restraining order can include the requirement that the abuser sell or dispose of all guns he or she owns, and can forbid the abuser to own or possess any gun during the time the restraining order is in effect.

2. A civil harassment order is used to obtain protection from someone with whom you have no close family or domestic relationship, such as a neighbor, former friend, co-worker, or business acquaintance. “Harassment” includes striking, sexual assault, stalking, making a believable threat of violence, or taking repetitive, threatening actions such as making harassing phone calls, sending letters or emails, or following you in such a way as to “seriously alarm, annoy or harass you” and “cause substantial emotional distress.”

Steps for a Restraining Order

An experienced divorce attorney can prepare all of the forms you will need for a restraining order and file them with the Superior Court of California. These forms will detail the person you need protection from, the violence or harassment, and the protection you desire. Within one day, a Superior Court judge will determine whether to grant you a temporary restraining order, valid for up to three weeks, to protect you until your hearing. The court will also set a date for the hearing, which you will likely need to attend with your attorney.

If the judge grants you a temporary restraining order, you and your attorney will receive five copies of the order. You will need to keep one copy of the order with you at all times. Your attorney will arrange to have the defendant served with the temporary restraining order and notice of the hearing.

Your attorney will work with you to compile evidence to support your case and establish why you need protection. This may include medical records, police reports, copies of emails and other documents, and photographs. Your attorney may also decide to call witnesses to testify at the hearing to support your request. At the hearing, you will likely be required to answer some brief questions about the harassment and your need for protection. The judge will then decide whether to grant you a permanent protective order. If the abuser then does anything in violation of the restraining order, that person may be required to pay a fine, and/or they can be sentenced to spend time in jail. In most cases, a restraining order will last for five years.

Call Minella Law Group for all Divorce Issues

If you have been threatened or abused and are planning to divorce your spouse, the experienced divorce lawyers of Minella Law Group can help you. We can obtain a restraining order either before or at the same time we file your initial divorce papers.

For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

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