Restraining Order vs. No Contact Order
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.
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.
So what do you do if you have a no contact agreement and the restrained party sends you an email? You file a Contempt Citation. If you have a restraining order and the restrained party violates it, if it is his first offense, then the stiffest penalty would be some anger management classes, community service and a fine. That’s it. Unless some other criminal law was violated, that is the stiffest penalty the restrained party would be looking at. Pretty severe, huh?
But, if the restrained party violated a no contact agreement, you could then file a Contempt Citation because the restrained party violated a court order. The restrained party would be brought before the court for an advisement and a hearing would be set. At the hearing, if the restrained party was found to have violated the no contact agreement, he could be punished with up to six (6) months in jail. You would also be entitled to reimbursement of attorney’s fees and costs for their violation. Not too bad.
Now understand that most judges do not hit the restrained party for the full six months jail on a first offense. Also understand that from the time you file the Contempt Citation until the penalty is issued, several months will pass. The court’s docket is backed up and most violators will have to wait well over one month for the advisement date and then another two to three months before the hearing. But the penalties for violation are much more severe. Having to cost the restrained party costs and attorney’s fees as well as the likelihood of some jail time is much more severe than just taking a few classes, undergoing some community service and not having to worry about jail time at all.
Because the penalties are more severe and there is a guarantee of some penalty, I usually encourage my clients to enter into the no contact agreement as opposed to taking a chance with a restraining order hearing. It does provide some level of protection, with the hope of stricter penalties than the restraining order. Naturally, if the restrained party continues to violate the agreement and you are concerned there are not enough protections, you can always go back in and file another restraining order along with another Contempt Citation. Having both in your back pocket will definitely provide the security so many injured parties desire.