On not getting arrested when you have a restraining order against you
- Take the order seriously
- Know the terms of your order
- Realize that it means exactly what it says
- Remember that only the court can alter the order
- Keep a copy with you
- If you’re not sure what to do, ask us
- Keep records
#1 Take the order seriously
Many restraining orders are initially granted ex parte (at an emergency hearing where only one party’s evidence is considered). If you are served with such an order, you will read many things in the accompanying declaration that seem to be lies and half truths. No matter what you think of the evidence the other party has submitted to the court, you MUST take the restraining order seriously. It is an order of the court, and there are grave consequences (including arrest and prosecution) for violating a restraining order, even one that seems to have been granted for no good reason.
Remember that your immediate goal is to make your case no worse until the next hearing. Violating a restraining order is one sure way to make yourself look even more like the monster the other party says you are.
#2 Know the terms of your order
Being served with a restraining order is upsetting. You might feel hurt and angry by the fact that your spouse (or girlfriend or boyfriend or ex-) has started court proceedings without telling you first, and anxious about important issues like when you will see your children again. Many people are so overwhelmed by these issues that they don’t know what the order actually says when they call their attorney about what has happened.
Sit down. Take a breath. Read the order. Then read it again (and read it again after that, if you have to) to make sure you understand it. If you don’t know exactly what the order says, you run the risk of violating it without even realizing that you are doing so.
Once you get the order, the law says that you are on notice as to all of its terms. It’s no defense to say that you only violated the terms of the order because you were not sure what the order said.
#3 Realize that it means exactly what it says
If an order says that you can’t go within 50 yards of the other party’s workplace, then this is what it means, even if that keeps you away from your own workplace in the same building.
Don’t assume that the court won’t enforce the order just because the terms are too harsh or even illogical. If the order causes you a real hardship (like not being able to get to your workplace) that is a reason to have the order varied by the judge. It is not a reason to ignore the order.
#4 Remember that only the court can alter the order
Your spouse did not make this order. A judge did. And only a judge can change it. Your spouse cannot (for example) “drop” the restraining order “just for this one weekend.”
If the restraining order is changed or dropped, there will be a court order saying so, and we (as your attorneys) will get a copy. Until that happens, the restraining order is in effect, no matter you might be told by the other party.
And don’t make the mistake of believing that it’s okay to (for example) meet the other party for dinner based on a promise that the meeting will be “kept secret.” When you are the only one subject to a restraining order, you are the only one at risk of ending up in jail if the “secret” dinner meeting turns sour.
If your spouse genuinely wants to attempt a reconciliation, the order can be changed to allow the two of you to meet at the office of a counselor or mediator.
#5 Keep a copy with you
Although law enforcement agencies will receive a copy of the order from the court, it’s not uncommon for police officers on duty to know only that there is a restraining order of some kind in effect, and that someone has claimed that the order is being violated in some way. If you have a copy of the order with you at all times, you can avoid being wrongly accused of a violation.
#6 If you’re not sure what to do, ask us
Will paying for a trip to visit your brother violate an order preventing you from spending money for any reason other than “routine expenditures?” Does an order preventing you from “indirect communication” with your husband mean that you can’t forward his mail to his new address?
Complying with a restraining order is important, but not always straight forward. If you are thinking of doing something that MIGHT be a violation, don’t just guess. Talk to us before you act. A violation of a restraining order (even a violation that seems “minor”) will likely harm your case in many ways, not least by making you look like a person who the court cannot trust. Don’t take that risk.
#7 Keep records
If you are going to convince the court that the other party is abusing the restraining order, or that the order is causing you undue hardship, you have to be specific. Telling the court that your spouse calls you “constantly” is not nearly as persuasive as explaining that you received nine voicemails on Tuesday morning between 2a.m. and 4 a.m. Saying that complying with the order caused you to miss “numerous” meetings with customers probably will not cause a judge to change an order. Showing that you have had to cancel four meetings in two weeks may well get you a helpful change in the terms of the order.
And don’t forget that the other party is probably keeping records, too.
We make no promises or representations about the accuracy of this information, or how it applies to your particular case. These articles are designed to give you ideas to consider and discuss with an attorney, but are no substitute for legal advice, and must not be used as such.