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PROTECTIVE ORDERS AND TEMPORARY RESTRAINING ORDERS: WHAT IS THE DIFFERENCE?

Posted by Anita Cutrer | Jan 30, 2020 | 0Comments

Many people do not understand the difference between the two and use the terms interchangeably. In fact, there is a substantial difference between the two documents.  The pivotal question is whether there has been family violence.

Temporary Restraining Orders (TRO):

The purpose of a Temporary Restraining Order is to restrain a party from doing something. This could be as simple as restraining someone from making harassing phone calls or making threats toward a person. A Temporary Restraining Order is usually an attempt to preserve property and prevent one party from selling property or draining bank accounts. It can also serve as protection to a spouse from harassing and disparaging communication from one spouse to the other. Temporary Restraining Orders, unlike Protective Orders do not require a finding of family violence. As such, Temporary Restraining Orders, for the most part, are not out of the ordinary and actually occur frequently when filing for divorce. It does not carry any kind of criminal consequences. It prevents another party from doing something until Temporary Orders are entered in the case. If a Temporary Restraining Order is filed, a hearing for Temporary Orders must be set within fourteen days, at which time, the Court will make Temporary Orders regarding the use and possession of property and the possession, access, and support of any children involved in the case. At this hearing the Judge often makes the TRO a Temporary Mutual Injunction which applies to both parties during the pendency of divorce.

Protective Order:

A Protective Order is much more serious than a Temporary Restraining Order, and is therefore harder to obtain. When a party is requesting a Protective Order against a spouse, it usually starts with an Ex Parte Protective Order.  The Ex Parte protective order is granted and signed by the Judge without a hearing and is based on an affidavit signed by the victim.  A hearing will be set to determine if a Protective Order should be granted.  A Protective Order requires a finding that family violence has occurred and is likely to occur in the future. A Protective Order is very serious, because if a Protective Order is granted against you, it could come with criminal consequences, such as a prosecution for family violence or assault. Additionally, if a Protective Order is granted against you, it is now illegal for you to own or possess a firearm. Unlike Temporary Restraining Orders, when a Protective Order is filed and granted, local police departments will receive a copy of the Protective Order and will thus be aware if a person is violating the Protective Order. With a Temporary Restraining Order, the local police departments do not receive a copy, and are thus less likely to arrest a party who is violating the Temporary Restraining Order.

As mentioned above, the main difference between the Protective Order and the Temporary Restraining Order is that the Protective Order requires a finding of family violence and that future family violence is likely to occur. A Temporary Restraining Order does not require family violence and can serve several purposes such as protecting a spouse from harassing behavior or preserving property from being sold or damaged.

Whether you need a Protective Order or a Temporary Restraining Order in your case, Anita Cutrer can assist you! Give our office a call and set up a free consultation.

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