5 Tips for Avoiding Restraining Orders During Divorce

It is very common for men in the middle of divorce proceedings to have their first encounter with the criminal court system. At least this is what my ex-wife, a defense gavel-4-1236439-1919x1276and family law attorney, taught me while we were still married. After I filed for divorce I learned about it first hand when she filed a restraining order against me. In my case the restraining order was vacated after a hearing in front of the judge, after 10 days of being separated from my kids. My attorney wife then filed an appeal to that decision, which eventually, after many months of worry and attorney fees, was found to be frivolous by the Appeals court. My ex had used the restraining order process as a strategy in the divorce process. She used it as a way to get concessions within the divorce.

My ex’s actions are not uncommon, and there is no way to absolutely prevent having a restraining order filed against you. As my ex taught me, people can start a court case against you on pretty much anything. It doesn’t mean they will win, but sometimes the filing by itself can get them what they want. Despite this, there are ways to protect yourself from having a restraining order filed against you, and at the very least have a good chance to have it vacated if one is filed.

1.  Don’t be violent.

I say this a little bit tongue in cheek, but assaulting/battering your ex physically or verbally is the quickest way to meet the wrong side of the criminal court system. If you are someone who has struggled with anger in your relationship, then I urge you to find support from an counselor with a background in anger management. Be honest with yourself and if you think that the emotional toll of the divorce process could lead you to violence against your ex, then make sure you avoid contact with them as much as possible.

2. Be aware of your surroundings when in your ex’s presence.

The restraining order my ex filed against me was based partly on one incident about a month after I learned of her 3.5 year affair. I had not yet filed for divorce and thought I could “nice” her back into our marriage. We had already begun a nesting arrangement where I would be in the house with the kids for a set time, she would be somewhere else, and then we would switch. One day she came to the house during my time with the kids and was in the bedroom getting some clothes. I came into the room to talk with her. The talk quickly escalated into an argument and I eventually had enough. I tried to leave the room through the only exit point, and she blocked my way. Yelling continued as I tried to get away from her. No touching occurred. She accused me  of assault and she “fled the house in fear for her safety”.

From that point on, the few remaining times I was in her presence, I would always sit down and not stand up until she left. That way there could be no question about whether I “came at her” or not. If you can, try not be in your ex’s presence. If that is not possible then be aware of your body in relationship to your ex. Place yourself in a position where your physical presence can not be seen as threatening. If you follow through with this as a consistent strategy you can always use this in court as a way to show that you were doing everything you could to minimize the chance of physical confrontation. Make sure that you have a free exit point, so that you have a way to escape if things do get heated. If you can not avoid being in your ex’s presence (still living in the same house for example) then:

3. Carry a recording device with you at all times.

This was a strategy that many people suggested to me, and I did not listen. I am very disorganized and never got around to it. But if you must be in your ex’s presence, then a recording device is an easy way to get through the complexity of the he said-she said nature of restraining order hearings.

4. Set up structures with your ex ahead of time that will minimize contact

Transition time, where you trade off your kids between each other, is one of those times that is unavoidable, but can be a source of constant conflict. Set up structures with your ex that minimize contact. Many parents will set up a schedule where the pick-up/drop-off happens at school. One parent ends their parenting time when they drop their kids off at school, and the other parent starts their time with the after-school pick-up. Other parents will do the transition in a public space like a restaurant or library so that there are witnesses around. If a public space is not possible, then have another person (a friend or grandparent are good…the new partner not so good!) with you during transitions as a witness, and do the transition in your ex’s driveway. Entering their house means more time together, less exit points, and ultimately the possibility of more conflict.

5. Anything that you write down, or say, can be used against you.

It is VERY hard not to engage with your ex when they are accusing you of something or pushing all of the right triggers. As someone wiser than I once said, “They know exactly the right buttons to push because they installed them.” I still struggle with this at times, but it is much better than early on in the process. It is very hard not to get the last word in on an argument you are having over email or text. Whatever you can do to not engage with the emotional craziness that is divorce, will benefit you in the long run. You do not have to be right in these wars of words. They ultimately don’t mean anything. And if you can’t avoid the text wars, then repeat the following over and over until you get it right, “I WILL NOT  threaten my ex over text, voicemail or email.”

Final thoughts

Receiving a summons for a restraining order hearing is a very confusing and upsetting event. Mine came during school hours when my principal found me in the faculty room and told me there was a policeman there to see me. The court officer or policeman is only there to deliver the summons, and are not there to pass any judgement on you or your situation. If you receive one try to stay calm and call your lawyer. If you have followed these 5 tips, then you will be ready to present your case to the judge and defend yourself from unfounded accusations.

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