Mutual Restraining Order for Uncontested Divorce
By Cindy Hill
Courts can issue restraining orders during a divorce process to prevent one party from contacting, or being within a certain distance of, the other party. Restraining orders may also be called civil protection orders, family court protective orders, domestic violence prevention orders, or an injunction against abuse. The process for obtaining a mutual restraining order in an uncontested divorce, as well as the effect of such an order, can vary, depending on the state.
In a small number of jurisdictions, mutual restraining orders are automatically set into place as soon as a divorce or separation petition is filed in the court, without any further action being taken by the parties or their attorneys. In some jurisdictions, if one party petitions the court for a restraining order, the court may choose to impose a mutual restraining order. In most states, however, each party to a divorce must file a separate, independent motion seeking a restraining order against the other person. Each independent motion must set out the facts that the party alleges supports the issuance of a restraining order against the other. Mutual restraining orders issued as a result of a single petition are disfavored because of the negative impacts such orders create, according to the National Council of Juvenile and Family Court Judges Family Violence Division.
A mutual restraining order applies equally to both parties to a divorce, without blaming one person for being at fault for the trouble between the parties. Preventing the parties from approaching or communicating with each other may help prevent acts of domestic violence. A substantial percentage of domestic abuse victims report that receiving a restraining order terminates the abuse, according to the National Council of Juvenile and Family Court Judges Family Violence Department. Whether one or both parties apply for a mutual restraining order, both parties will have access to whatever advocates and resources are available in their jurisdiction that may help them in moving through the conflict, hostility and stresses of divorce.
Mutual restraining orders in an uncontested divorce can have far-reaching legal, economic and practical effects. Logistical difficulties may arise if the parties share a residence or work at the same place of employment. One spouse or the other will have to move and change jobs. Mutual restraining orders are a matter of public record; they can also affect child custody. Both subjects of a mutual restraining order are barred from possessing firearms other than government-issued arms necessary for law enforcement and military service. This may preclude either party from working in civilian jobs that require firearms such as private security or courier services.
Mutual restraining orders may be limited in duration, either by operation of statute or by the judge's order, requiring both parties to return to court to seek an extension of the order if one is necessary. Mutual restraining orders may diminish the effectiveness of enforcement by creating confusion among law enforcement officials. When a mutual restraining order is issued after one person petitions for a restraining order against the other, that person's confidence in the fairness of the justice system may be lost, generating feelings of resentment or helplessness.
- Louisiana Supreme Court: Protective Orders Frequently Asked Questions
- American Bar Association: States Permitting or Prohibiting Mutual Protective Orders Without a Separate Petition
- Greene County Ohio Domestic Relations Court: Important Notice Re: Mutual Restraining Orders
- National Council of Juvenile and Family Court Judges Family Violence Department: Civil Protection Orders--A Guide for Improving Practice
- South Carolina Legal Services: Types of Domestic Violence Prevention
A freelance writer since 1978 and attorney since 1981, Cindy Hill has won awards for articles on organic agriculture and wild foods, and has published widely in the areas of law, public policy, local foods and gardening. She holds a B.A. in political science from State University of New York and a Master of Environmental Law and a J.D. from Vermont Law School.