Divorce can be devastating. It can also be dangerous, especially if your spouse is physically abusive. You may not only need to escape the marriage, you also may need to seek legal protection to avoid domestic abuse which can include sexual assault, physical assault, fear of serious injury, stalking, threatening actions, destruction of property, or disturbing the peace. Recently on our forum a user asked, “When I told my spouse that I wanted a divorce he became physically abusive and threatened to kill me. I am really scared. What are my legal rights and how can I get a restraining order against him?”
What is harassment?
Making a claim of harassment and seeking a legal restraining order may be necessary in some cases, but it is important that you do not make idle threats unless the actions of your spouse truly rise to the level of legal harassment.
As mentioned above, if your spouse has engaged in any type of sexual or physical assault, threatened to injure you, destroyed your property, or made threats against your children, you may have the right to seek a restraining order.
In fact, a restraining order can be granted to protect you from your spouse and/or other family members, including married or domestic partners, ex-spouses, boyfriends or girlfriends, or any other relative including a parent, sister, grandparent or brother.
Can I get a restraining order if I have been injured?
If you have been sexually or physically assaulted by your spouse it is time to talk to the police. The police will gather evidence about the assault, and if there is sufficient evidence to prove a crime occurred, they will charge the accused with a crime. If your spouse is convicted, they may be forced to pay fines and penalties or spend time in jail.
Evidence of the assault can also be used to prove that your spouse is a threat to you. This evidence can be used to support the claim that you need a restraining order.
What is a restraining order?
State laws vary, but a restraining order is a legal enforcement action which is issued by the state to eliminate the threatening actions, stalking, harassment, or physical abuse from another person. Domestic orders may also be more comprehensive, outlining issues related to child support, visitation, and child custody.
The means to obtain a restraining order vary by state, but generally require you to go to court and complete certain forms or an application for a protective order. These forms may be located online.
The forms must be taken to the courthouse and submitted. In some cases a temporary protective order can be issued until a hearing about your case is scheduled. Due to the emergency nature of most requests, the hearing is generally scheduled in less than 10 days to 2 weeks from the date of the restraining order submission.
A judge will preside at the hearing and listen to evidence for the case. The alleged harasser may also present evidence countering the order. Both parties may have legal counsel present.
Will the judge issue a restraining order?
The judge will only issue the restraining order if there is sufficient evidence to determine that you are in danger of abuse, there has been previous physical or sexual abuse, you have fear of physical harm, etc. If the order is granted, the police will serve the order.
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