Unfortunately, it is not uncommon for one spouse to abuse or assault the other for their decision to file for divorce or even merely thinking about ending a marriage.
If you wish to file for a protective order during your divorce, get help from a Temple divorce attorney. Read on to find out what a protective order is and how it can help you during divorce proceedings in Texas.
What is a Protective Order?
A protective order is a court order that requires one person to stop abusing, harming, or threatening to harm another person. You may be able to file a petition for a protective order if you have been a victim of:
Violence
Physical abuse
Sexual abuse
Domestic abuse
Stalking
Human trafficking
When a court issues a protective order, it prohibits the restrained person (the abuser) from certain actions against the protected person (the victim of abuse).
What Does a Protective Order Do?
Prohibitions in a protective order depend on the type of the order being sought. For example, when a person becomes a victim of family violence, the court may issue a protective order to prohibit the restrained person from:
Hurting or threatening to harm the protected person;
Communicating with or attempting to contact the protected person in any way (in person, phone, texts, social media, or other means) both directly and through a third party;
Going anywhere near the protected person’s home or workplace, their children, family members, and pets;
Possessing a firearm (even if they have a license); and
Harming the protected person’s pets.
Additionally, a protective order may order the restrained person to:
Pass drug testing
Pay restitution to the protected person
Pay child support (if the protected person is the parent of their child)
Pay spousal support (if the protected person is their spouse)
Leave the marital home (if the protected person is their spouse)
Attend anger management classes
Complete a substance abuse treatment
Can You Get a Protective Order During a Divorce?
Yes, you can get a protective order before or during your divorce proceedings. In Texas, a person is eligible for a protective order when:
Another person, such as your spouse, hurt you or threatened to use violence against you; and
You have reason to believe that the person may physically hurt or kill you.
The abuser does not necessarily have to be your spouse or dating partner to get a protective order against them. You can file a petition for a protective order when you have a close relationship with the abuser.
However, you do not necessarily need to have a close relationship with the abuser to get a protective order if that person stalked or sexually assaulted you.
In Texas, most petitions for a protective order are filed by spouses who fear or become victims of family violence during a divorce.
What is Considered Family Violence in Texas?
In order to understand what is considered “family violence” in Texas, you need to understand how state law defines a “family”:
Persons related by blood and affinity
Spouses and former spouses
Individuals who have children together (even if they are not married)
Foster children and foster parents (even if they do not live together)
Now that you know how Texas law defines “family,” it is easier to understand what is considered family violence. Pursuant to Texas Family Code § 71.004, family violence is defined as:
An act of violence committed by a member of a household or family;
against another member of the same household or family;
with the intent to cause or threaten bodily injury, physical harm, assault, sexual assault.
Note: A person is not committing family violence if they cause bodily injury or physical harm in the act of self-defense.
If a member of your family or household (e.g., your spouse) threatened to cause you harm, you must be able to prove their threat reasonably placed you in fear of imminent:
Bodily injury
Physical harm
Assault
Sexual assault
Can I File for a Protective Order Against My Spouse if I Live with Him/Her?
Yes, you can file for a protective order against your spouse even if you live together. This can be done before or during a divorce or even if you do not intend to divorce your spouse.
As mentioned earlier, one of the terms of a protective order may be requiring the restrained person (in our case, your spouse) to leave the marital home.
Typically, protective orders are effective for up to two years. However, the court may extend the order before it expires.
Can I Get an Emergency Order for Protection?
Yes, if you reasonably believe that you are at risk of immediate harm, you can ask the court for a temporary order to protect you from the abuser until the court’s scheduled full hearing. The hearing is usually held within two weeks of filing the petition for a protective order.
The temporary order is known as a Temporary Ex Parte Protective Order. If you do not qualify for an emergency order for protection, you must wait for the court hearing to get your protective order.
Even if you qualify for a Temporary Ex Parte Protective Order, you are still required to attend the full hearing. During the court hearing, you will testify in front of the judge. For this reason, it is advisable to consult with a lawyer to prepare you for the hearing.