Types of Restraining Orders in a Divorce

The Types of Restraining Orders: DTRO & ATRO what is the difference? 

Anyone who is considering filing for a restraining order, first needs to know what the term implies. In some states a restraining order can be referred to as a protective order, and it dictates a legal order that has been issued by the local court to offer protection for a victim of domestic abuse, or abusive activities. A restraining order may command that the abuser stays away from the protected person, allowing no form of contact or disturbance of their peace. In some cases, this can mean that the abusive individual is removed from the family residence that they previously shared with the victim.  In San Diego there are many types of restraining orders available to you when you are going through a divorce.

The difference between a temporary restraining order, and order after hearing

The primary difference between a temporary restraining order, and one that is issued after a formal hearing, is that a temporary restraining order may follow an ex parte appearance, meaning that it was issued by one party (typically the victim) while the other (the aggressor) was absent. A temporary restraining order may be given to restrain the aggressor from engaging in further abusive activities until a proper hearing can be held. The aggressor may then be served with an order to show cause, which would inform them of the time and date a hearing will be held to determine whether a more permanent order should be given. An order after hearing is just that, it is an order that is issued after the judge gets to hear from both parties in the case.   This order will stay in effect until there is a new court order OR until an expiration date on the order is reached.  A restraining order after hearing is what is issued after your hearing is heard on your temporary order if the judge feels there is sufficient evidence for an order after hearing.

Securing a temporary restraining order

In some cases, requesting a temporary restraining order can lead to the order being issued on the very same day. It can then remain in effect until the date of the scheduled hearing, where a further decision will be made. Depending on where you live, the order to show cause hearing will typically take place between two or three weeks after the issuance of the initial temporary order.

In order to have a more permanent order issued, the victim will typically need to show evidence that the aggressor was abusive or violent towards them, or their dependent in some way. Whether the abuse was emotional, or physical, it may still carry the same weight before a court.

Automatic temporary restraining orders and divorce

ATROs, or automatic temporary restraining orders, are regularly used in divorce proceedings as a form of legal nicety. Rather than implying that some sort of abuse has taken place these restraining orders are put in place when a divorce proceeding is filed with the court and they are automatic.  Neither party has to apply for these restraining orders.   ATROs are used as a measure to maintain respect between divorcing spouses and limit the actions and freedoms that either spouse may have had before. An ATRO will prohibit either spouse during a divorce proceeding from:

  • Destroying or hiding assets
  • Changing bank accounts
  • Selling or transferring property
  • Modifying the beneficiaries on policies such as wills, life insurance, and health insurance
  • Borrowing or selling insurance that has been taken out for the other spouse
  • Removing the children from the county of the state

Basically, an ATRO will prevent either party in a divorce from changing the financial status of the marriage once proceedings begin.  Just as the word ‘automatic’ is regularly used in the title, this does mean than ATRO will be automatically included within every divorce petition. In fact, the ATROs warning is on the back of every summons advising the parties of what actions cannot be taken when a divorce is taking place.  You may need to speak to your lawyer about what type of conduct would violate the ATROs in your divorce case. This is a serious violation and can subject you to serious financial penalties.

Minella Law Group Can Help!

If you or someone you know needs assistance with a restraining order, the qualified staff at Minella Law Group can assist you. 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.