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Should I File a Restraining Order Against My Ex?

Getting a divorce is a very stressful and emotional event, and during this time, you and your former spouse may be battling some serious emotions. However, in some instances, these emotions and the actions that result from them can pose a serious threat to you and your family’s safety. If you are a victim of domestic violence or need further separation from your former spouse, you may be able to file a restraining order against him or her.

When Should You File a Restraining Order?

Restraining orders are very serious pieces of documentation, and you do not want to file one unless it is absolutely necessary. However, divorce can lead a person to act out angrily and sometimes engage in violent behaviors, and your former spouse may make threats against you, harass you, or try to coerce you into not filing for divorce. In these situations, a restraining order is likely necessary.

If your former spouse engages in any of the following actions or behaviors, you may have grounds to file a restraining order.

  • Assault or attempted assault
  • Sexual misconduct and forcible touching
  • Harassment and stalking
  • Disorderly conduct
  • Threats to harm you and your children, or threats of kidnapping
  • Any other behavior that makes you fear for your safety or your children’s safety

When Should You Not File a Restraining Order?

You should only file a restraining order if your former spouse acts in such a way that threatens the safety of you and your children. Do not lie to file a restraining order, file one to punish your ex, or file one as a way to gain an upper hand during divorce proceedings.

Restraining orders can lead to lifelong consequences, such as trouble finding employment or housing, receiving spousal support, and an inability to gain child custody. Before filing a restraining order, consult with a San Jose family law attorney or law enforcement officer to discuss if the situation is appropriate.

What Types of Restraining Orders are Available?

Receiving a restraining order can help protect you and your children from a violent former spouse. You can impose a stay away or no-contact order on your former spouse, retain temporary custody over your children, limit visitation rights, and require him or her to move out of a shared home. Filing can reduce instances of violence and allow you to bring criminal charges against your former spouse if he or she breaks the terms of the order.

There are several types of restraining orders you can choose to file, depending on the reasons you decide to file.

  • Courts give out temporary restraining orders before they hold a formal hearing for a permanent one. Typically, these restraining orders only last a few weeks prior to a hearing; however, you can usually obtain one without waiting for a long time or before notifying your former spouse.
  • Permanent restraining orders occur after a hearing where you and your former spouse present your cases in front of the court. These orders are often long-term and the length will depend on the circumstances of your case.
  • You may also receive an exclusive possession order. This order is also known as a “kick-out” order, which requires your former spouse to move out of your shared home as soon as possible. As a result, you receive exclusive possession of the home.
  • If you need immediate support, a police officer can issue an emergency protective order while responding to a domestic violence call. Usually, these orders last for five business days, which give you enough time to speak to an attorney who can help you file for a permanent restraining order.

Emotions can run high during a divorce, and it is important to protect your and your family’s safety. If you are in immediate danger and need emergency protection from your former spouse, contact your local law enforcement office as soon as possible. If you need assistance filing a restraining order or need further guidance as to whether you should file one, contact a San Jose family attorney to assist you with your case.