The process of separation and divorce is difficult for all spouses to endure, but it’s especially precarious for victims of domestic abuse and harassment. According to Arizona courts, an order of protection—or a restraining order—against a spouse serves as a means to “prevent continuing acts of family violence.” When a family member engages in or threatens acts of violence against a spouse or child, a judge may issue an order preventing the spouse from contacting the target of their abusive behavior. Spousal restraining orders may be enacted in emergencies through law enforcement or in non-emergency situations through filing a petition in court. Spousal restraining orders are critical tools for victims of domestic abuse, especially during an Arizona divorce.
What Is an Order of Protection?
Sadly, some marriages do not end with a “happily ever after,” but instead become unhealthy and dangerous to one spouse’s physical and emotional well-being, or a danger to children in the home. In these cases, a spousal restraining order, or order of protection, prevents the spouse from contacting their target in any manner, including in person or by phone, text, or email. The order of protection is fully enforceable. A spouse who violates a spousal restraining order faces criminal charges and jail time, as well as negative repercussions in their divorce case during decisions about child custody and the division of marital assets. Depending on the specific circumstances of the case, a judge may order one of three basic types of spousal restraining orders:
An emergency order of protection:
Emergency orders typically result from an escalation of violence or the threat of violence occurring outside of normal court hours. A judge may issue an emergency protection order over the phone in response to a request by a spouse through their local law enforcement agency. When a spouse feels threatened or is in immediate danger, they may call 911 and request law enforcement presence. If the officers perceive a valid threat after arriving on the scene they make the call to a judge to request an emergency order of protection for the subject. Once the judge grants the emergency order, the subject must go to the courthouse on the next business day, or contact their attorney, to file a petition for a long-term order of protection.
A Limited Order of Protection:
Limited orders of protection are also known as “Refrain From” orders. They limit contact between spouses to communication through third parties or a mediator and prohibit direct contact, threats, stalking, harassment, or any act of criminal intent.
A Full Order of Protection:
Known as “Stay Away Orders,” a full order of protection against a spouse prohibits all in-person contact, emails, texts, or messages between the spouses and limits communication to exchanges only through both parties’ attorneys.
According to A.R.S. §§ 13-3602, 12- 1809, a full order of protection also grants one spouse the following:
“The use and exclusive possession of the parties’ residence on a showing that there is reasonable cause to believe that physical harm may otherwise result. If the other party is accompanied by a law enforcement officer, the other party may return to the residence on one occasion to retrieve belongings.”
A judge’s full order of protection may also prohibit the subject of the order (defendant) from purchasing or possessing firearms. Any weapons the subject currently owns must be turned over to law enforcement during the restraining order’s duration.
How to File for an Order of Protection
Arizona takes domestic violence seriously and allows alleged victims of domestic abuse to obtain an order of protection at any time, either through an emergency order from law enforcement or by filing a petition at the courthouse in their jurisdiction. If the victim isn’t within their normal jurisdiction when filing, they may file at any Arizona courthouse and the court will issue the order and then refer it to the petitioner’s local court. Obtaining a restraining order against a spouse requires showing ID, proof of your address, the defendant’s name and social security number (when possible), and the names, birthdates, and social security numbers of any children involved in the protective order. The filing process may take up to two hours. Arizona courts do not charge fees for filing for orders of protection.
When a spouse has legal representation for a Phoenix divorce, the attorney can assist with obtaining a spousal restraining order.
Can a Spouse Misuse an Order of Protection?
Restraining orders are an invaluable means of protection against spouses who commit or threaten violence against the other spouse or children within the home; however, some divorcing spouses intentionally misrepresent a non-violent situation as threatening in order to obtain a restraining order. Their intention may be to remove the spouse from the home so they can retain the family residence, or to sway a judge in a child custody decision. If a spouse abuses their right to obtain an order of protection, it can result in serious implications for the subject of the order who could lose their right to child custody or visitation as well as their right to enter their home.
If you’re the subject of a spousal restraining order wrongfully obtained by your spouse, you require an immediate strong defense through an experienced attorney to overturn the order. Proving that a spouse misused an order of protection for their personal gain in a divorce case results in serious consequences for that spouse in court during child custody decisions and the division of marital assets.
How Can a Family Law Attorney Help?
A family lawyer helps with the fast facilitation of a full or limited order of protection against a spouse who has committed domestic violence or engaged in threats or harassment. An experienced divorce lawyer in Arizona uses their resources and in-depth knowledge of the state’s laws to streamline the process for the best possible results while obtaining an order of protection, enforcing the restraining order, and defending their client’s rights and best interests throughout the divorce process.
Call the Arizona divorce attorneys at Stewart Law Group today so we can take prompt action to secure your safety through an order of protection and begin working on a strategy for achieving your desired outcome in your Arizona divorce case.