The Nuclear Weapon Of Divorce: Orders Of Protection

orders of protectionLast 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.

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6 comments on “The Nuclear Weapon Of Divorce: Orders Of Protection

    Is there any case that has over turned a protive order for fraud at the federal level. This has happened to me and I am looking at jail time for a crime I did not commit.

    This will all stop when legal standards make a woman 50 percent responsible for bringing a child into this world. This ludicrous thinking they receive all rights at home and in the workplace and equal salary but dont have to be financially responsible for a child they bring into this earth…..Well frankly its BS. Write someone or give it some thought and spread it.

    This is exactly what I went through in the tough part is I fought and fought. And lost. Then during my divorce I had The same judge as the PPO. She told me there no way she would. give somebody with a PPO against him custody of the kids though my ex-wife had admitted to being bipolar and drug use with the kids in the car!

    The same identical situation happened to me here in Ohio!!!!
    The system is so broken and is only a money venture for the courts and attorneys!!
    Worst of all my family is destroyed and I’m being crucified it doesn’t end!!!

    The article you published is confusing to me. The reason for this confusion is simple, I went through a similar experience — in that my estanged wife left me while I was at work, took my daughter, and used the system to try and destroy me, all to start her new life with her boyfriend with me out of the way. I live in upstate New York and I wasn’t even an opportunity for the first hearing for seven weeks. The allegations my ex made were based on her statements that I was verbally abusive, but she added the “I’m in fear for my life” ploy. Mind you, it took me about eight months and $17,000 just to get through a half a dozen hearings, and in the end her being caught in her own lies, false reports, etc… So my question is, why if everyone knows that the system is being used mostly by women to get the leg up in custody, support, and divorce — why does it continue, why is it so blatant, why is it so rampant, why do women continue to be rewarded with the “farm”, why are men so viciously attacked and persecuted, why aren’t these women held accountable, why, why, why — I could go on for quite a while with the double standard nonsense?!?!? Please tell me how this is allowed to continue unchecked with so much ferocity??? Why have I spent over $43,000 and my ex won’t sign the divorce papers and nobody can or will force her to three years later, meanwhile I am forced to keep her on my medical insurance.

    Very True question. Why the system continue allowing women setting up men for their gain with lies and yet, the court system continue allowing such damaging behaviors. I spent well over $12000.00 to proof my innocent, not guilty for the false allegations my ex girlfriend accused of domestic violence against her, taking our 7 months old daughter away given me a restraining order not going closed to her and our daughter. She also falsely accused of inappropriately touching her 17 years old daughter hoping that I will get convicted with criminal charges so she can obtain sole and physical custody of our daughter and comes after me for child support. At the end, after spending over $12,000.00 to both my criminal lawyer and the family lawyer. I was found not guilty of the alleged criminal charges, and charges were dismissed. I was awarded physical and legal joint custody of our daughter. 50% joint custody. Yet, the court is forcing me to pay child support to her because I work and brings in more income than her. Despite we have 50/50% joint custody. The system is not fair toward we the men.

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