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RESTRAINING ORDERS

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What is an Order of Protection? 

An Order of Protection is also commonly referred to as a “Restraining Order” which essentially restrains or prevents one person from making contact with another person. This order typically requires one person to stay at least 1500 feet away from the other person.  

When can I file for an Order of Protection against my spouse? 

You can file for an Order of Protection if you are in “reasonable apprehension of bodily harm” from your partner or family member.  You can also file for an order of protection if you are the victim of the one of the following offenses by a partner or family member:

  • assault or aggravated assault
  • intimidation
  • partner or family member assault
  • criminal endangerment or negligent endangerment
  • assault on a minor
  • assault with a weapon
  • unlawful restraint
  • kidnapping or aggravated kidnapping
  • arson

What if my spouse has made a false claim and the court issued an Order of Protection preventing me from being in the family home?

You need to meet with an experienced attorney immediately!  Run fast.  Sometimes an unscrupulous spouse will make this type of a false claim to merely keep you out of the family home.  During that time, your spouse has access to key marital documents and marital property while you have no access to any of this due to the restraining order.  When this occurs, you cannot retain an attorney too soon – especially if this false order of protection is keeping you away from your kids!

Can a judge issue an Order of Protection against me without talking to me? 

img Yes.  All your spouse needs to do is provide the court with a written statement under oath.  In that statement, your spouse needs to merely allege that he or she is  in “reasonable apprehension of bodily harm” or that he or she was the victim of one of the above-enumerated offenses.  Then, the court can issue a temporary order of protection.  Usually, this temporary order of protection stays in place for twenty days (or slightly longer) until the court can have a hearing where you will have a chance to tell your side of the story.  At your hearing, you should have experienced counsel by your side to help represent you. 

What is typically covered in an Order of Protection?

Most Orders of Protection prevent one person from having contact with another person.  If an Order of Protection has been issued, the other party is usually restrained from committing further acts of abuse or threats of abuse against the protected person.  Also, the other party can be ordered to stay at least 1500 feet away from the protected person’s home, workplace, vehicle, children’s school/daycare, and other places as further listed and identified by the court.

I was just served with a Petition for Dissolution, and I was served with a Summons and Temporary Restraining Order.  I don’t understand!

Take a deep breath and relax!  This is standard procedure.  There are two types of restraining orders.  There is an economic restraining order and the other restraining order many attorneys commonly refer to as the “1500 foot restraining order” which typically applies in domestic violence situations.

All divorces filed in Montana include an economic restraining order found in a document called a “Summons and Temporary Restraining Order.”  Montana courts want to keep the parties from selling, hiding, and otherwise disposing of property, or basically liquidating the marital estate while the divorce is pending (absent a few exceptions). The economic restraining order is intended to keep everything on a level playing field so the assets can be fairly distributed and divided at the conclusion of the dissolution.

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