Posted On: August 27, 2009

Restraining Order vs. No Contact Order

>By THE GASPER LAW GROUP, PLLC

If you have read one of my other blogs, “A Package Deal,” you would know that many divorce cases come with several cases wrapped into one – domestic violence case, restraining order and then the divorce action. This article focuses on Restraining Orders.

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I normally advised clients to obtain a restraining order when they are concerned about harassment or threats of violence from their spouse. The restraining order can include the children of the marriage or anyone in the household that requires protection. Once you get the Temporary Restraining Order and have the spouse served, then the matter will be set for hearing. It is at this stage that I advise clients of the three options available.

The first option is to proceed forward with the restraining order hearing. There is no guarantee the restraining order would become permanent and this option is the only option where result are uncertain. Depending on the facts of the case, some clients have a better chance than others.

Option two is to continue the temporary restraining order and “wrap” it into the divorce proceeding. The restraining order hearing is continued for roughly ninety (90) days and not addressed by the court. Rather, the parties proceed with the divorce hearings and attempt to resolve the restraining order during the divorce proceeding. This sometimes results in the party seeking protection ultimately dismissing the restraining order. The other option may be that the party seeking protection has never been able to set aside their fears and the restraining order hearing proceeds as scheduled.

The final option is the crux of this blog – the No Contact Agreement. People assume the No Contact Agreement has no protections and is just a promise of the other party to not contact them. But the No Contact Agreement is much more than this. The penalties for violation are more severe than those for violation of a permanent restraining order. The penalties for violation of a no contact agreement include up to six months in jail.

So how does it work? The no contact agreement is a contract between the parties that is filed with the Court. The contract is usually filed in the “DR” case, as we like to call it, or family case to the lay person. If there is no “DR” case, then the document is filed in the restraining order case or criminal case, if one has been opened. The document is a binding contract that all parties must adhere to. Once the No Contact Agreement is approved by the Court, the restraining order is dismissed in its entirety.

The contract is usually reciprocal, although I have made it one-sided on occasion. Regardless of whether the document is reciprocal or one-sided, the agreement continues to “restrain” one or both parties from having any contact with each other. This include telephone contact, email, text messages and even Facebook or MySpace. The agreement will also include a prohibition from either party coming within 100 yards of each other, their home, school and place of employment or places frequented by the party (i.e. church, playgrounds where the children may play, etc…). Because it is a contract drafted by the attorneys and entered into between the parties, it can contain any provisions the parties desire so long as the provisions are not unconscionable (i.e. prohibition on the right to sue).

Just as with the restraining order, if a restrained party happens to run into the other party at, say, the grocery store, then the party last there or who recognizes the other party first, must leave the premises immediately. For example, say Jane and John have reciprocal No Contact Agreements. Jane is out having dinner at a restaurant, seated and having already ordered her meal, when John walks in the door. As soon as John recognizes that Jane is present, he must immediately lave the restaurant and have his dinner elsewhere.

So far, you can see that the No Contact Agreement is just like the Restraining Order. So how do the two differ? The two differ when it comes to penalties and enforcement.

If you had a restraining order and the restrained party came within 100 yards of you or telephoned you, you could dial 911 and have the restrained party arrested and/or cited for violation of a protection order. The report of the violation does not necessarily mean that the other party would be arrested. It depends on the circumstances. Even with an arrest, the restrained party would spend no more than a couple of days in jail waiting on bail (I say a couple because if the violation occurred on Friday evening, he may not be able to get in front of a judge until Monday morning, or Tuesday morning depending on holidays). The bail amount would be minimal almost guaranteeing a release. Regardless of whether the restrained party is arrested, the restrained party would certainly receive a summons for violation of a protection order and given a court date.

The above scenario would not happen with a No Contact Agreement. If the restrained party violated the no contact agreement, you could not call the police for assistance. You could call the police only if a criminal law were violated. But if the restrained party came within 100 yards of your residence, or telephoned you directly, calling the police would provide no assistance. They would be unable to do anything, unless of course the restrained party violated a criminal statute. This is the only drawback of the no contact agreement.

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Posted On: August 10, 2009

Defining a WIN in Divorce - "It's the Kids, Stupid!"

By THE GASPER LAW GROUP, PLLC

When I was asked by our Office Manager to do a blog about what is considered a “win” in a family law case, I had to chuckle to myself. You see, just a couple of hours earlier, I was engaged in a long conversation with one of the Judges next door about that exact topic. The judge and I were discussing what would constitute a “win.” She and I both concurred that, in a divorce case, there are no winners. If anything, everyone loses.

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Don’t get me wrong, a divorce case is the most traumatic and emotional situation anyone can find themselves. This is even more pronounced when children are involved. In most cases, you have two people who, at some point in time, fell in love with each other and committed themselves to a union. Children are later brought into this union. Then something goes wrong. Now you have two people, formerly in love with each other, who now hate each other more than they could have imagined. Clients will deny that they hate their former spouse, but the truth is, when someone you loved and trusted broke your heart or destroyed your trust, it’s hard to not have intense hatred towards that person. This emotion often clouds their judgment and rational thought, making every issue in a divorce case a contentious battle.

I see this all the time. Clients who dig their heels in and fight over the most ridiculous things – the bedroom set, statuettes, TV’s, photographs, you name it. The thing is, the client’s get so bogged down into fighting with their spouse over these mundane items that they lose sight of the true prize – the children.

The judge gave a great analogy to a divorce – it is like the dissolution of a partnership. You have two people who entered into a contract. They have purchased items together and brought in “employees” (i.e. children). A dispute arises and the partnership must dissolve. Not only does the partnership have to pay off its debts and liquidate its assets, it has to ensure their employees are taken care of. This is exactly what occurs during a divorce.

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Posted On: August 7, 2009

Filing for Divorce - "Race To The Finish"

By THE GASPER LAW GROUP, PLLC

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I have had clients come in and ask whether it is better for them to file a Petition for Dissolution first. Client frequently believe that it is important to be the first to file. When asked what position is better, I always answer, “It depends.”

If a party is having an extra-marital affair, is it better to file first and go on the offense to dispute the claim? If one party feels they can no longer reside with the other party, but want to continue to be a major part of their children lives, should they file first and leave the residence? If they leave the residence, would the other party claim desertion or abandonment?

First, Colorado is a no fault state. Whether a party has “cheated” on the other during the marriage is completely irrelevant. Courts do consider extra-marital affairs if one party has used marital funds in furtherance of the affair, i.e. buying hotel rooms, expensive dinners, fine clothes, spa treatments, etc.. If a party has used marital funds in furtherance of the affair, the other party may seek reimbursement of those funds as part of the dissolution decree. This may be beneficial in offsetting any maintenance that might be owed.

As for abandonment or desertion issues, the only time the courts consider such issues occurs when one party completely abandons their family, which constitutes failure to provide financial support or a home for the abandoned family. Otherwise, the courts do not consider abandonment just because a party has vacated the marital home due to marital discord.

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