Divorce Attorney Scott J. Stadler

    • 01 DEC 15

    Protective Orders and Divorce in Florida

    Divorce of marriage breakup. Word cloud illustration.When most people enter into a relationship, they do not seek out to be abused by another person. Unfortunately, there are cases in which spouses, or significant others, have taken physical action against their partners. Fortunately, there are steps that individuals can take in order to protect themselves from abusive relationships.

    When is a Protective Order Necessary?

    In the State of Florida, domestic violence is defined under Florida Statute 741.28, and can contain a multitude of actions, including:

    • Assault
    • Battery
    • Sexual assault
    • Sexual battery
    • Stalking
    • Kidnapping
    • False imprisonment, or
    • Any criminal offense resulting in the physical injury or death of a family member or household member.

    In order to be able to file for a protective order, under Florida Statute 741.30, a petitioner must either be a victim of domestic violence, or must believe that he or she is in imminent danger of becoming the victim of an act of domestic violence.

    It is very important to remember that, while a protective order allows the court to impose sanctions upon an individual in violation of that order, at the end of the day, it is still just a piece of paper. Individuals who have obtained a protective order from the court must still remember to be aware of their surroundings and to take the appropriate measures to protect not only themselves, but also their loved ones. While a protective order can provide temporary protection from an individual, it can also have an effect on any subsequent divorce or child custody cases that may arise.

    Protective Orders and Divorces

    While some people may think that an act of domestic violence would be sufficient to support a claim of divorce, in reality, acts of domestic violence can not be the basis for divorce. This is because Florida, much like a majority of jurisdictions, no longer recognizes fault divorce. Even though domestic violence is not a basis for divorce, however, does not mean that it is not relevant to divorce proceedings. Acts of domestic violence can have far-reaching effects on issues within a divorce proceeding. For example, under Florida Statute 61.075, a court may consider a number of factors when dividing property between spouses, including:

    • The duration of the marriage;
    • The economic circumstances of the parties; and,
    • Any other factors necessary to do equity and justice between the parties.

    While there is no specific mention of domestic abuse within this portion of the statute, it is possible for acts of domestic violence to be considered a factor that should be considered in order to do equity and justice between parties. However, domestic violence can have an effect on families that goes even farther than property division.

    Protective Orders and Child Custody

    When it comes to custody determinations, regardless of the surrounding circumstances, the court will always be concerned with the best interests of the child. Much like in divorce, while incidents of domestic violence will not be the sole factor that decides the outcome of a custody hearing, it is one of many factors that can have an effect on the court’s decision. Incidents of domestic violence, however, might not only have an effect on the abusive parent. In some cases, if a parent fails to shield a child from such divorce, then that failure to act may factor into future custody matters.

    How to Get a Protective Order

    In order to obtain a protection order in Florida, an individual will first need to file a petition with the court. In this case, the person filing the petition will be known as the petitioner, while the person alleged to have committed acts of domestic violence will be known as the respondent. While a sample petition can be found within Florida Statute 741.30, information that will be presented within the petition includes:

    • Petitioner’s residence, which can be presented to the court in a separate filing if the petitioner requires the location of the current residence to be confidential;
    • Respondent’s address;
    • Respondent’s most recent place of employment;
    • Physical description of the respondent;
    • Aliases of the respondent;
    • Relation of the respondent to the petitioner;
    • Previous or pending attempts to obtain a protective order in any jurisdiction against the respondent;
    • Actions that the respondent has taken against, or is believed to take against the petitioner, and
    • Any additional specific facts.

    In addition to a protective order, petitions may also request an injunctive order to obtain a temporary protection order that will be in place while the court is making a determination on the petition for a protection order.

    Typically, a court will review a petition for a protective order relatively quickly. This initial review, however, is not generally a place for both parties to have a say in the matter. During this first review, the court will look to the petitioner’s side of the facts, and will make a determination on whether a temporary protective order or any other injunctive order will be granted. If an injunctive order is granted, the order will then be served upon the respondent, typically by the sheriff. If the respondent is living in the same place as the petitioner, then the respondent will usually be given some time to remove any personal effects. After the respondent has removed personal effects, or if the respondent already resides in a different place, then the respondent will no longer be able to come into contact with the petitioner. This includes through third parties, such as friends or family members, by mail, by phone, and by electronic communication, such as text or email.

    After the court has performed an initial review, a return-hearing will generally be scheduled around two weeks after the initial review. At the return-hearing, the court will take into account evidence from both the petitioner and respondent in order to make a determination on whether to grant a protection order.

    While the process for a protection order can seem simple, as seen above, it can have a large effect on a person’s life.