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Divorce Dirty Tricks--Restraining Order Abuse
Families in the Balance
How Restraining Orders Can be Abused in Divorce Proceedings
There is no question that divorces can get very nasty. Sadly, many divorce litigants employ a variety of "dirty tricks" to get tactical advantage during proceedings including filing questionable restraining order(s) against the other party. This is known as a form of restraining order abuse.
A restraining order is a court order limiting the contact of one individual with another or, as in a case involving children, several others. This includes direct physical contact, phone and mail contact, contact in the home, contact at work, etc.
In an effort to curb domestic violence and prevent harm to victims of it, various pieces of federal and state legislation have been enacted to protect victims in the last 20 years. While the intent of such legislation is to protect victims, they have also had the unfortunate effect of lessening the burden of proof required for litigants to request courts to intervene with restraining orders.
With the new legislation, judges are wary of being blamed for ill effects that may happen when a restraining order that is needed is not put into place. For instance, should a murder happen because a judge refused to grant a restraining order, backlash against that judge could be severe. Therefore, the current practice is for judges to enact the restraining order even if proof of the actual need for it is nebulous. In the words of one attorney I know, "they [judges] pass them out like candy".
Although it is an honorable intention of the law to protect those endangered, aggressive restraining order actions often preclude due process and are subject to abuse. In other words, mere accusations of fearfulness on the part of one party is often enough to enact restraining orders on another party who is not even present to defend himself or herself. Also, proof that the fearfulness is warranted is often lacking or even non-existent.
Many divorce attorneys have now added restraining order defense to their repertoires. In addition, the American Civil Liberties Union (ACLU), has been involved in actions on behalf of citizens' civil rights when restraining orders are filed inappropriately.
Tragically, it is now commonly held that abusive restraining orders can be used to gain tactical advantage in divorce proceedings, harass those named in the restraining order, prevent them from seeing their children, and deny them their basic civil rights.
Effect of New Restraining Order Procedures
The effect of these new rulings when inappropriately applied include denying access of those accused to home and possessions, restricting visitation with children, destroying the credibility of those accused and incurring long and painful journeys through the court system. When respondants are denied property required for work, those accused may also face substantial financial loss .
When enacted, restraining orders often interfere with child visitation and a parent must weigh seeing their children with breaking the law. Children are often mystified as to why a parent suddenly seems disinterested in them while such orders or actions to dismantle them are ongoing. Sadly, this is subject to case load and often stretches into months or even years
While often unable to prevent such restraining orders from going into effect immediately, victims of restraining order abuse can spend months trying to cope with them or diffusing their adverse consequences. Restraining orders typically involve rules such as keeping some number of feet apart from those who the restraining order protects, contain rules about how children are visited, etc. Inadvertently breaking any of these rules constitutes a restraining order violation which can lead to arrest and jail time.
While litigants who request restraining orders are supposed to be liable if lying, proving a person does not have a sense of fear is often impossible in practice. In addition, divorce attorneys have been known to use restraining orders and the promise of lifting of them as bargaining chips during a divorce.
While more often used against men and now a hot topic for "Men's Rights" groups, these restraining orders can also be targeted at women. Sadly, children often suffer the worst fallout.
Ironically, in a divorce even the complainant can suffer monetarily if the respondant's finances become diminished enough to affect the final settlement or ongoing child support. The only ones who unequivocally benefit from the situation, regardless of what happens, are divorce attorneys.
One Man's Experience
One man, Ron Lasorsa, is a poignant example of an ordinary father accused falsely in a restraining order by his former wife. Blindsided by this false restraining order, he suffered:
- Estrangement from his children (including mandated parental supervised visits)
- An emotion-filled legal battle
- Extremely expensive legal bills
- A fight to clear his name and defend his reputation
- The denial of access to his rightful property (including firearms).
Legislation reducing the burden of proof and lifting the requirement of those accused in restraining orders proceedings to be present has created a situation that is ripe for abuse.
The nastiness and fallout of such abuse often increases exponentially if there are children involved who do not understand what is going on. Case load contention in the courts often cause substantial delays making effects on all involved far reaching, indeed.
While such legislation was enacted with the intention of protecting those endangered by abusive spouses, boyfriends and girlfriends, these restraining orders are often given only cursory attention by judges before being rubber-stamped into place. Changes that were meant to prevent abuse ironically has now become a tool of abuse.