During a divorce or separation, tension within the family often escalates and creates a potentially hostile environment. In a situation where one spouse feels threatened or there are allegations of actual abuse, they can request the family law court to grant a domestic violence restraining order, which can be either temporary or permanent. California Family Code Section 6203 describes the prevention of domestic violence. A restraining order is designed to protect a spouse from reasonable threats of harm.
A restraining order is a judicial order that prohibits you from doing certain things, such as contacting your spouse or children or coming within a certain distance of them. Your spouse can also obtain a kick out order on an emergency basis which will force you to leave your home. Protective orders allow the court to specifically define what is considered acceptable contact between spouses, often including children.
Once the court issues a restraining order, this means protected party has given the court sufficient testimony or evidence to convince the judge that protection is in fact necessary. It's a crime to violate the conditions of a valid restraining order.
The unfortunate reality is that some restraining orders are frivolous and merely a tactic used to harass a spouse during the divorce process. Getting kicked out of your home can be extremely burdensome, requiring that you spend money on a hotel or crash with friends.
Nevertheless, if you violate a restraining order, you will certainly get into trouble. The judge might hold you in contempt and the prosecutor could bring criminal charges against you. Either option can be detrimental to the divorce and your future, so contact a California divorce attorney for help.
Why Judges Grant Restraining Orders
The logic behind restraining orders makes sense. Many marriages indeed are riddled with domestic violence, and a restraining order provides victims with space they need to get through the divorce and move on with their lives.
Unfortunately, judges sometimes award restraining orders without hearing from the accused. These are emergency orders which, although usually temporary, are nevertheless fully effective when issued. Chances are the judge heard a slanted version of events and, out of caution, issues the restraining order.
This might seem unfair, but the last thing you can do is blow off the restraining order. If one has been entered against you, you absolutely must follow it.
Requirements for Violating a Restraining Order
A restraining order can have numerous conditions. You need to read your order to identify precisely what the judge has ordered. Generally, your order will:
- Prohibit any contact with your spouse and/or children
- Prohibit any contact with your spouse's place of work
- Require moving out of the home
- Prohibit possession of a firearm
To be convicted of a violation, the following must be true:
- The restraining order is valid
- You knew of the restraining order at the time of the violation
- You intentionally committed the violation
For example, your spouse might have gotten an order to remove you from your home. If you had no idea, then you haven't violated the order by going home after work. However, once you become aware of it, you need to follow the terms of the order.
Likewise, you must intentionally violate the order. If you accidentally run into your wife in the grocery store parking lot, this is not an intentional violation—though you should leave the location as soon as possible.
Sometimes, a temporary order has expired when your spouse tries to call the cops on you. This would not be a violation unless there is a valid order in place.
Criminal Penalties for Violating a Restraining Order
Violating a restraining order is a misdemeanor offense that carries up to one year in county jail and a fine of $1,000. You might also be ordered on probation. A first-time violation that causes harm to the victim will, at a minimum, require 30 days in jail. You might receive even more time, so you should meet with a Los Angeles domestic violence attorney for a consultation.
After a second violation, you can face more severe penalties. You might be charged with a felony, which carries up to three years and jail and a fine of up to $10,000.
Judges have discretion to also order anger management, substance abuse counseling, and restitution in addition to any of the above penalties. These can cost you even more money, making your divorce just that much more expensive.
Just because you have been accused of violating a restraining order doesn't always mean you will be charged or convicted of a crime. In some situations, the violation may have not been intentional.
If this is your situation, you need to take immediate action to correct the violation and follow the conditions of the order of protection. For example, if the conditions of the restraining order prevent you from coming within 200 feet of your spouse and you just happen to come into contact with them at daycare, you have a legal responsibility to make a correction and not let it happen again.
If you are fighting over child custody, then violating a valid order is probably the last thing you should do. Your credibility will be sunk in the judge's eyes, and the judge might be more likely to believe that domestic violence has actually occurred in the marriage. Any evidence of abuse can be used to rob you of custody, so following a restraining order is vital.
Speak with a Los Angeles Divorce Lawyer
There are situations where you might find yourself being falsely accused of violating a restraining order. Our experienced divorce lawyers can help to defend you against these false allegations.
If you have been accused of violating a restraining order during your divorce proceedings, you need to retain an attorney to defend you against potential criminal charges. If you are convicted of a restraining order violation, you will be facing fines, jail time, and a negative impact on your divorce case.
If you've been served with a restraining order, contact our law firm to review the details. We have helped many husbands and wives in these difficult circumstances, and we are here for you, too. Call 818-528-3471 or submit an online contact form. You can meet with one of our Los Angeles divorce lawyers for a free consultation.
Furman & Zavatsky LLP
15821 Ventura Blvd #690
Encino, CA 91436