Avoiding Common Protective Order Pitfalls

Avoiding Common Protective Order Pitfalls

A “Protective Order” is a court order requiring a spouse or “cohabitant” to stay away from the other. The process generally involves one spouse going down to the courthouse, making a one-sided allegation of abuse or domestic violence, and the court granting a “temporary ex parte Protective Order” until it can hold a hearing on the matter to decide whether to keep or get rid of that Protective Order.

The frustrating part of the process is all too often allegations are made that are either exaggerated or outright false. All too often unscrupulous individuals abuse the expedited, one-sided nature of the protective order process to obtain temporary orders in their divorce case giving them custody of the kids, the house, and other important items without giving their ex a chance to be heard. Nevertheless, as soon as they get served with a copy of that temporary protective order they are bound by it until the court rules otherwise even if it was obtained using lies.

Unfortunately many good people frustrated by the circumstances they find themselves in do not follow the Protective Order, reach out to the other side via telephone or e-mail to complain about the lies the other side told the court, and subsequently find themselves being criminally charged for violating that Order and getting stuck with a permanent Protective Order. Do not let that happen to you.

Under Utah law, it is a crime to intentionally or knowingly violate a Protective Order (both temporary and permanent) after having been properly served with it. To add insult to injury, violating a temporary Protective Order is a legal basis for the court to grant an ongoing Protective Order even if it does not believe the allegations that caused it to grant the temporary order in the first place. That means even if your ex lied to obtain the temporary order you could go to jail and get stuck with a permanent Protective Order against you.

What is the take away from this? If you’ve been served with a Protective Order then you need to follow it even if you disagree with it. You will have an opportunity to be heard by the court soon enough and can argue why it should be dismissed at that time. And in some cases you can even ask for an expedited hearing to dismiss the Protective Order if you can show it is based on lies or imposes an undue burden. The Judge could even order the other side to pay your legal bills, make-up any time you did not get to spend with your kids, and pay your money for any harm the temporary order caused you. That is why it is often best to bite your tongue and be patient rather than do something rash you will later regret.

To be sure, sometimes there is a grey area between what is allowed and what is prohibited by a Protective Order. For example, if you have children with the other side the Protective Order may say that while generally you are not allowed to contact your co-parent you can do so if it is for the limited purpose of discussing “child issues.” But more often than not the Order will not define what is and is not a “child issue” leaving it to be determined on a case-by-case basis whether a particular message violates your Protective Order. You need to be very careful in these types of situations to police yourself and make sure you do not say anything that could be misinterpreted as a Protective Order violation. If in doubt, it is a good idea to send messages through attorneys to avoid accidental violations. (Note: not all Protective Orders contain exceptions allowing you to contact the other side and if your Order does not contain such a provision then you should follow the specific language found in your Order).

Protective Orders are serious business and rife with pitfalls. It is important to go to Court armed with a smart, aggressive attorney experienced at handling such cases like the attorneys at Wiser Family Law. Give us a call today at 855-254-2600 or via the web for a free case review.

 

 

 

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