How Can I Obtain a Restraining Order During a Divorce?

Divorce often has to happen because of the bad actions of one spouse: and sometimes, the other spouse must get a restraining order to protect themselves, and possibly their children, from an abusive or dangerous partner. Your family law attorney in Houston can help you through these steps to getting a restraining order during a divorce.

How Can I Obtain a Restraining Order During a Divorce?

What Is a “Restraining Order” and Are You Eligible?

The first thing to know is that in Texas, what is commonly known as a “restraining order” is called a “protective order.” This is an order issued by the court, and it requires a person to stop doing some particular thing or things in relation to another person: usually abusing them or threatening them in some way.

You will be eligible for an order of this type if you or your children have ever been a victim of violence, sexual or physical abuse, domestic abuse, or stalking on the part of an ex-partner. During a divorce, you can also get a protective order if you have reason to believe the other person intends to harm you, your children or other family members, and even your pets.

What Can a Protective Order Do?

What Can Be Forbidden

What the protective order usually does is to restrain the abuser from taking certain actions, including some they would normally be free to do but which they will now be penalized or even jailed for doing, such as coming within a certain distance or making phone calls or other types of contact. The precise nature of these orders depends on the unique situation of each person seeking them.

So for example, some protective orders are about forbidding a person to hurt or threaten another. Some protective orders will forbid a person from communicating or even attempting to communicate with the protected person, either directly or through a third party. With this kind of order, an ex partner would not be allowed to talk to you in person or attempt to contact you by phone, text, email, or social media.

Sometimes, protective orders forbid a person to go near the protected person’s property, workplace, and even their pets, children, and other family members. Protective orders can forbid a person to possess a firearm, even if they have a license to do so, and can even be put in place to protect the protected person’s pets.

What Can Be Required

Sometimes, in addition to forbidding a person doing certain things, a protective order can also require that they do something else. For example, they may have to pay some kind of restitution to the protected person. They may have to leave the marital home if the protected person is their spouse, and they may have to pass drug testing in order to be allowed access to their children. In other cases, they may be required to complete substance-abuse treatment or attend anger management classes.

What Qualifies as “Family Violence” in Texas Law?

For you to get a protective order during a divorce, in many cases you’ll need to show that there has been family violence. The first step is defining the family under Texas law. A family under the law are all persons related by blood and affinity; individuals who have children together even if not married; spouses and former spouses; and foster children and parents, even if they don’t live together any longer.

Family violence occurs when anyone in one of those relationships commits an act of violence against another person in that group with the intent either to cause them injury, harm, assault, or sexual assault, or even with the intent just to threaten it. If a person is exercising their right to self-defense, they are not considered to have committed family violence, even if they injure another person in their family group.

Getting an Order with Your Family Law Attorney in Houston

The first step is to speak with your family law attorney as soon as possible. Not only can your attorney help you to file your application properly, but they can also expedite things if it’s an emergency. As you’ll see as you read on, it’s not the simplest thing in the world to file for these orders.

If you are not actively in the middle of a divorce case, you can file your application for protective orders in the county where you or the abuser lives or in any county where any abuse has taken place. However, if you actually have an ongoing divorce case, you will need to file your request for a protective order either with the same court where your case is already pending or another court in the county where you live, but with a special explanation to the clerk about the ongoing divorce case. Note that there are standardized forms in some counties, but other counties offer their own version of the form, and you need to know what to use and how to fill it out properly.

Once you have filed your petition, it will be reviewed by a judge, who may want to ask you some immediate questions about your application. Your lawyer can help you to answer these questions in a way that supports your application for protective orders. In some cases, judges may issue very quick temporary orders for up to 20 days while they more fully investigate the claims made in your request. Before you can get a permanent order, a full court hearing is required and the abuser must be given the opportunity to present evidence and testimony if they desire. This can be a highly stressful situation, so it’s always best to have a lawyer on your side.

Common Questions

What If My Spouse Is Still Living With Me?

You can file for protective orders even if you and your spouse currently live together. This can be done either during a divorce or even if you haven’t yet decided to divorce or don’t want to. Protective orders can be issued for up to two years at a time, and the court can extend them at any time before they expire if necessary. The court will likely require your spouse to leave the home if you get a protective order against them while you’re still living together.

What If It’s an Emergency?

If you believe that you or your children are at immediate risk, ask your lawyer about filing for a temporary order to protect you immediately while you wait for the full hearing. Usually, a full hearing can be scheduled within two weeks of filing for an emergency temporary order. Bear in mind that you must still qualify to get a temporary order and that you are still required to attend the full hearing for permanent orders even if a temporary order has been issued.

If you need to be protected from an ex-partner, don’t hesitate to get the legal support you and your children need to be safe. Contact us now at C.E. Schmidt & Associates, PLLC in Houston, TX for help. With over 40 years of experience in the Houston courts, Eric Schmidt has put together our experienced and compassionate team of lawyers who can help in all areas of family law.