Last week, Cordell & Cordell principal partner Joe Cordell fielded questions from callers on the Charlie Brennan Show on KMOX NewsRadio in St. Louis.
One of the questions concerned orders of protection. A caller described how when he started the divorce process his attorney warned him that his wife could serve him an Ex Parte Order. The caller recalled being baffled by the idea of being served such an order considering he had never exhibited anything even resembling abusive behavior toward his wife or kids.
And yet, shortly after he served his wife divorce papers, he received the Ex Parte Order and was kicked out of his house. The order didn’t stick, but he still had to cover additional attorney fees to get the issue resolved.
Unfortunately, this scenario plays out all too often in divorce proceedings.
“Orders of protection are just horrendous,” Mr. Cordell said. “They’re almost like a battlefield nuclear weapon, but they’re only available to one side of the table in divorce and once that’s lobbed across, the implications of this allegation, the allegation that there is some vague fear of possible physical harm, it takes very little to go down and get one of these issued.”
Orders of protection are designed to protect one party from abuse. However, they’re often used by women as a tool to get a leg up in their divorce case.
In 2011, a Stop Abusive and Violent Environments report estimated that 85 percent of protective orders are entered against men. Mr. Cordell estimates that of that 85 percent, 90 percent are products of tactical divorce considerations rather than actual protection from abuse.
These orders will usually require the parties to stay a certain distance away from each other and will limit the amount of communication they have. In some states, these orders give the right to ask for an award of custody, child support and spousal maintenance.
By filing for an order of protection prior to filing for divorce, one party can gain an advantage regarding property division, child custody or child support.
The reason orders of protection are so frequently abused is because they’re incredibly easy to obtain.
In most jurisdictions, the proponent that domestic abuse has occurred carries the burden of proving the claim by only a “preponderance of the evidence.” All that means is the party must prove that it is more likely than not that the abuse has occurred, which is the lowest legal standard of proof in the court system and that lends a huge amount of discretion left to a trial court to determine whether that standard has been met.
In most states, a party only needs to assert a fear of violence. Some applications can even be made over the phone.
The temporary order remains in effect until a hearing can be held, which usually takes about two weeks. This gives the defendant very little time to prepare a response.
At the hearing, each spouse briefly states their case before a judge. Judges typically “play it safe” in these scenarios since there are huge ramifications for both the victim and the judge if a motion is denied when there is actual abuse.
In many jurisdictions, the defendant is presented with two options at the hearing: 1. Agree to a restraining order even though there are no findings that abuse occurred. 2. Proceed to evidentiary hearing to contest the allegations.
Agreeing to a restraining order is often viewed as an attractive option because there is such a low standard of proof in domestic abuse hearings and there are enormous consequences if there are findings of abuse. Agreeing to a restraining order gives the defendant an out to continue fighting for custody in the family court. The second option also requires an aggressive defense to prove the abuse allegations are unfounded.
However, the downside of accepting a restraining order is that it will enter for up to a year unless it is modified by a subsequent court order. Any violation of that order will result in criminal action and the victim can later try to extend the order and could again do so on flimsy evidence.
Even if the allegations of abuse are proven to be false and the order is dismissed, the stigma of the accusations remain. The order of protection is still visible on background checks for employment and may affect the party’s criminal history record.
“The implications for his job are huge,” Mr. Cordell said. “He can’t own a firearm. Some careers will be forever closed to him. … It’s really a horrendous abuse.”
Obviously, there are plenty of instances where the threat of abuse is legitimate and an order of protection is absolutely necessary. But if you’re facing a divorce, you should be on the lookout for allegations of abuse.
If false allegations are made, it is critical to be aggressively proactive in contesting them.