A Question of Law: "Should I give up my protection order in a divorce negotiation?"

There are times when our divorce and family law cases involve domestic violence. Sometimes one party has obtained a protection order for protection against domestic abuse or harassment. One of the benefits of these types of protection orders is that when an offender violates that order, law enforcement can intervene and that person can be arrested and be criminally charged. The threat of arrest and criminal charges discourages an abuser's bad behavior.

When a party with a protection order is also going through a divorce, the person against whom the order is entered typically wants to have the protection order dismissed. Oftentimes judges are also leery about maintaining protection orders in a divorce proceeding as it presents a tool for one party to use against the other. For victims who have suffered abuse in the past, judges will typically keep the protection orders in place. If this is not the case the protection order is often replaced with a mutual restraining order that grants both parties protection from harassment during the pendency of the action. When one party gives up the protection order, the deterrent of intervention by law enforcement is also lost. That's because when somebody violates a mutual restraining order there is no longer the threat of immediate arrest and a criminal charge. Civil penalties are sometimes not as effective in discouraging abusers.

If you have a protection order against a spouse and are going through divorce negotiations and proceedings, you need to talk honestly with your attorney about your circumstances. Your attorney can help determine if you should ask the judge to maintain the protection order and how to best argue for keeping it in place.

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