The Truth about Restraining Orders

As an experienced divorce attorney, I am often questioned about the process involved in obtaining a "restraining order". Many people believe that such an Order can be obtained if a husband and wife get into a verbal argument or if someone is harassing them. This is not true and Florida law is very specific as to the requirements needed to seek such an order.

First of all there is in fact really no such legal document as a "restraining order". The Order that can be obtained is called an Injunction for Protection Against Domestic Violence. As the title suggests, this order is to protect someone from domestic violence which is defined as any criminal offense resulting in physical injury or death of one family or household member by another family or household member. The statute goes on to further explain that anyone who is either the victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence has standing to seek an injunction.

The basis for such an injunction therefore must be based upon either acts of violence or acts which would result in the other party having a reasonable belief that there was imminent danger of such violence. Conversely, injunctions will not be issued based upon harassment or threats which do not prove to result in imminent fear of harm.

To obtain the Injunction a sworn affidavit must be filed and presented to a judge. If the Judge feels that the evidence is sufficient, a Temporary Injunction will be issued. This will usually require the Respondent (the person who has the injunction issued against him/her) to vacate the marital residence and to have no contact, direct or indirect, with the complaining party. A hearing will then be held within 15 days, giving both parties the opportunity to present their case to a judge. At that hearing either party can be represented by an attorney. The Judge will then determine if the Injunction shall remain in effect or whether it shall be dismissed. Injunctions can remain in effect for a certain period of time or indefinitely. The Injunction can also be modified allowing minimal contact to discuss issues such as child visitation.

The purpose of this Injunction is to offer protection to someone, who has been the victim of domestic violence or has a reasonable fear to believe that he/she will be a victim. Unfortunately, it is sometimes abused by individuals who use it as a means to "get back" or punish their spouse. I often say that the Injunction is to be used as a shield, to protect an individual, and not as a sword to harm someone. The Petition seeking the Injunction is sworn to by the applicant as being true. It is unlawful to lie under oath.

Nobody should allow themselves to be a victim of domestic violence. If you are, the law exists for your protection.

A Downturn in the Economy Means a Rise in Divorces

During the past several weeks I have seen a large increase in the number of individuals consulting with me about a possible divorce. People with long term marriages, short term marriages and everything in between. I of course immediately began to suspect that this increase was primarily due to the economic recession that we are experiencing. I began to wonder if statistics have been kept concerning the possible increase in the filing of dissolutions of marriage during economic hard times. I found statistics for various years when the economy was taking a downturn. When the economy was weak divorce filings did in fact increase. One study showed a 16.9% increase from one year to the next.

The above information is not surprising to most of us I’m sure. We all know that financial pressures can negatively effect even the strongest of marriages. If a couple is having issues, it certainly can be devastating. So turbulent economic times will increase the divorce rate, but it also makes divorce much more difficult.

A couple must determine how two separate households will be able to survive financially. Over the past several months I have spoken to dozen of people who are experiencing the same issues. What are we going to do about our home? Neither party can afford the expense alone. If it is listed for sale one can expect a long listing period. Who will stay in the home while it is for sale? Who will pay the expenses? If I move out where do I go? What can I afford?

Many people are coming to the realization that South Florida is just too expensive for them to live comfortably. Parents are seeking permission to leave the area to better their lives. The law does not necessarily allow a parental relocation if you are the custodial parent. Some people feel that they are stuck in a relationship from which they cannot escape. So what are people doing? Many are “sticking it out’. They are hopeful that market conditions will improve and things will become clearer.

It is certainly a very tough time even for individuals who are in a healthy relationship. One can imagine the additional stress this economy can put on a shaky marriage. I certainly suggest that if you are in a similar situation you should contact an experienced family attorney to discuss your options. Sometimes a creative settlement can be suggested.

A Reality Check

I have been practicing law for almost 30 years. In light of these tough economic times, the practice of family law has become increasingly frustrating to both attorneys and clients who have received fair settlements. As a family and divorce attorney, I strive to assist my clients through a very difficult time in their lives. Whether you have experienced the emotional turmoil of a divorce, or know someone who has, it is not difficult to understand the many issues which must be addressed.

In the past few months I have been contacted by clients who have been divorced for several years. They were able to settle their case and move on with their lives. Each of these clients were extremely satisfied with the settlement they had achieved during my representation. They had closure to a difficult situation and they were no longer worried about their financial security. Each of these clients (all former wives) was to receive alimony and child support. In addition, I believe that their former husbands also felt that their marital settlement agreements were fair.

The reality of life soon set in. Due to a number of various reasons their former spouses could no longer honor their financial obligations. As a result homes slipped into foreclosure, private school for minor children became an unaffordable luxury and plans for the future disappeared. So what can be done? Motions for contempt have been filed and the discovery process has begun. We are now searching for assets which can be used to fulfill these obligations that were previously agreed to. There is however an old saying and that is “you can’t get blood from a stone”. Contempt will not be granted unless it can be shown that the non payment is “willful”. It must be proven to a judge that the individual had the funds but elected not to pay either child support or alimony. We are all aware that the economy has affected a great many people. Many people who agreed to pay a support obligation can no longer meet that obligation due to a loss of income or a loss of employment. So in spite of a successful negotiation at the time the divorce was filed, which led to a fair and equitable Agreement; both parties are essentially back to “square one”. There lies the frustration. No matter how hard an attorney tries to achieve a favorable result for his/her client, sometimes circumstances are beyond our control.

As the economy continues to weaken, I suspect I will see more and more of these types of situations.

Answers to your questions about divorce, custody, visitation etc.

As an attorney specializing in family law matters for over 20 years...