Restraining orders are orders issued by a court that prohibit specific people or entities from engaging in certain acts. They are commonly used to prevent harm and insure the safety of the parties and their children as well as securing the martial estate and preventing destruction of assets or creation of new debt. If this type of order is issued against you it is enforceable by contempt which can include a fine and jail time. These orders can make conducting your business and life very difficult, but luckily there are options for lifting or modifying restraining orders.
Many jurisdictions have a standing order that goes into place the moment a party files for divorce or custody of a child. The majority of the provisions of these orders are common sense. Things like do not harass each other or do not hide the child from the other parent make sense. But occasionally a provision of these standard orders will impact a parent’s ability to work or see their child. Fortunately these types of restraining orders are always temporary. If the court does not have a standing restraining order one or both of the parties may request one. If granted the order will also restrict one or both of the parties, sometimes in unforeseen ways.
Restraining orders come in two varieties, temporary and permanent. Temporary orders last for either a certain amount of time or until the divorce is finalized. Permanent restraining orders can only be removed by order of a judge. It is common for the temporary type of order to be made permanent in the final decree of divorce. It is very important that you review the final decree of divorce to make sure that any of the temporary orders that were particularly difficult to deal with have not been carried over as permanent.
There are two ways to deal with a restraining order. If it is temporary you can wait until the deadline passes or the divorce is finalized and the order expires on its own. If you are unable to wait or if the order is permanent you will need to file a petition to remove or modify the order. This generally requires that you file a petition that states what parts of the order you wish to lift or modify and why the change is necessary. That petition must then be served on the other party and a hearing set. The other party will be given an opportunity to file a written response explaining their position. At the hearing both sides will present their position and evidence. After hearing all of the testimony the judge will enter a ruling either dismissing the order, modify the existing order or issue a new restraining order.
Chris McHam is the lead attorney for McHam Law, a Round Rock, Texas based law firm focusing on family law, criminal defense, probate matters and civil litigation in Travis County, Williamson County, Hays County and Bell County.