Can I Get a Restraining Order During Divorce? | Divorce & Family Legal

When a marriage causes harm to either of the parties, they may want to seek a divorce. But before the legal proceedings begin, filing a petition for a restraining order can become important, especially if the affected person or their family's life is in danger.

New York law allows a spouse to seek an order of protection to ensure their safety and protection. However, understanding how these legal orders work and the impact they can have on the divorce process is crucial.

In such situations, working with an experienced divorce lawyer becomes essential, as they can help the affected party learn more about their rights and take the necessary steps to ensure their protection during this stressful time.

Common Types of Orders of Protection in New York

Also commonly referred to as an order of protection, a restraining order is a legal order that a person facing safety issues can seek. It can:

• Provide protection

• Stop violence

• Limit contact between parties

There are two main types of restraining orders, and they include:

• Temporary restraining order: In some cases, the affected party's life may be in immediate danger. They may want to seek a temporary restraining order, which offers full protection until the court hearing. The court often issues this on an immediate basis.

• Final order of protection: Once the court hearing begins, the judge listens to both sides. If they believe that the petitioner's life is in danger, they may grant a final order of protection that can restrict contact between parties and enforce stay-away requirements to ensure the affected spouse’s protection.

Since several courts can issue a restraining order, there are different types of court orders, and they include the following:

• Family Court Order: If a spouses, family member, or a person in an intimate relationship needs protection from someone, they can reach out to the family court for a restraining order. Can you get a divorce while pregnant? Read more of our blogs to find out.

• Criminal Court Order: Situations involving a criminal case or a crime against the petitioner (prosecuted by the state's district attorney) allow the affected party to seek a restraining order from the Criminal Court.

• Supreme Court Order: Depending on the circumstances of the situation, the Supreme Court can also issue its own order of protection during divorce proceedings.

• Integrated Domestic Violence Court (IDV Court): When family or criminal matters end up in the IDV Court, the affected party can request the judge to issue a restraining order.

What Are the Grounds for a Restraining Order in New York?

A spouse can seek a restraining order on the following grounds:

• Domestic violence

• Emotional or psychological abuse

• Harassment or threats

• Criminal activity

The court will evaluate the evidence (police reports, witness statements, and medical records) and listen to the defendant and the respondent before deciding whether to issue a restraining order. It's important to note that the person seeking an order of protection could be either party in a divorce.

Can I Get a Restraining Order During Divorce?

The affected spouse can seek a restraining order in New York if they or their family are at risk. They can request the protective order at any time during the divorce process, ensuring their safety and protection. Violating this legal order can lead to serious consequences, reinforcing the safety of the protected person.

How to Obtain a Restraining Order During a Divorce

Understanding the steps to obtaining a restraining order during an ongoing divorce proceeding can protect the affected spouse. They include the following:

1. Filing a petition: The person must file a petition with the appropriate court and provide supporting evidence.

2. Temporary restraining order: The court issues an immediate temporary restraining order to offer protection to the children or other household members until the court hearing date.

3. Court hearing: During the court hearing, the judge will determine whether to issue the final order based on the provided evidence.

4. Final order of protection: The judge may grant a final order, if required, to stop violence and provide protection to the affected spouse. It may last up to two years in Family Court and up to four years in Criminal Court.

While the process may seem simple, it can be stressful for the affected spouse. Working with an experienced attorney or domestic violence advocate can build a strong case while ensuring legal compliance. Can you get your spouse to pay the attorney fees? Check out more of our blogs to learn all about it.

Does a Divorce Affect the Length of a Restraining Order?

Ongoing divorce proceedings can influence how long a judge maintains the restraining order and under what conditions they may extend or modify it.

The court will look at the divorce process, the safety of the children, and the well-being of the petitioner before determining the duration of the final order. Domestic violence or abuse during this time can prompt the judge to prioritize immediate protection of the affected spouse.

If the ex-spouse faces continued risk following the divorce, they may request a hearing to change the terms of the final order. The other party can also request the same if they believe their behavior has changed over time.

The Impact of a Restraining Order During Divorce Proceedings

A restraining order can have an impact on the following:

Access to Minor Children and Child Custody

Since the court will consider the well-being of any children involved, it may issue a restraining order, blocking the other party from reaching out to them. It can also impact child custody decisions.

The other parent (defendant) may have to comply with the rules of supervised visitation or third-party exchanges if they wish to stay in touch with the children.

Communication Barriers

When a judge decides to issue a restraining order, it can prevent the other party from making direct contact with the petitioner. It may restrict emails, texts, or calls, and in some cases, may require constant monitoring of any communication that takes place. In such situations, our divorce attorneys in Albany NY may need to facilitate the exchange of information during divorce proceedings.

Access to Assets and Property

When the court issues a restraining order, it can temporarily restrict marital property or assets. Under careful legal coordination, access to spousal support or child support may continue.

Court Appearances and Mediation

While a restraining order limits contact, both parties must still attend hearings and mediations while respecting the court order. Failure to comply can lead to serious consequences in both civil proceedings and criminal cases.

Legal Perceptions

An already existing restraining order can influence legal perceptions during divorce proceedings. A judge may view it as a safety concern and make decisions regarding custody and visitation arrangements in favor of the petitioner.

How Can a New York Divorce Lawyer Help

If an affected individual wants to seek a restraining order, they must work with an experienced New York lawyer. A skilled attorney can help them in many ways, including the following:

• Prepare the petition for a restraining order while ensuring all evidence is properly presented.

• Attend court dates, ensure compliance with legal proceedings, and advocate for the final orders of protection.

• Connect the affected person with domestic violence resources and specific resources for safety and counseling.

• Provide guidance on how a restraining order may affect child custody, access to assets, and visitation schedules.

Situations involving domestic violence or any form of abuse can pose serious danger to the other person. A knowledgeable attorney can provide immediate protection while properly managing all legal obligations in a divorce case.

Need a Restraining Order in New York? Divorce & Family Legal Can Help!

For residents of Albany and across New York State facing domestic violence or needing a restraining order during a divorce process, Divorce & Family Legal provides experienced guidance and compassionate support. Our team can help navigate the legal process, coordinate with local courts, and ensure safety for our clients and their children.

Contact Divorce & Family Legal today to schedule a free consultation and take the first step toward protection and peace of mind!