Fear can be debilitating and no one should have to live with someone they fear. A spouse can fear the other, even if no physical harm has occurred. At Hallier Stearns PLC, we support you and want you to know that if you or someone you know is living in fear of their spouse, there is something you can do about it.
Obtaining An Order of Protection
Physical violence does not have to have already taken place in order for you to obtain an Order of Protection. If your spouse has acted in a threatening or intimidating manner, either if their words or actions have caused you to fear for your physical safety, or if they have restrained you, they may have already committed a legally defined act of domestic violence. Such acts give you sufficient grounds upon which to obtain an Order of Protection.
The term “Order of Protection” refers to an order that protects a person against another person to whom they are married, are related, with whom they live or have lived, or with whom they have a child. You may request an Order of Protection from the Superior Court, a Justice Court, or a Municipal Court. (Go to www.supreme.state.az.us for court locations.) You can request an Order of Protection without an attorney, or with an attorney, if you prefer to have one.
You do not need to schedule an appointment in advance and there is no filing fee. You will fill out a form where you need to list the incidents when your spouse’s behavior made you afraid of being harmed.
You will then see a judge or justice of the peace who will grant the order if he or she believes your spouse may commit an act of domestic violence or has committed an act of domestic violence within the last year. The court can also consider domestic violence that occurred more than a year ago if there is good cause.
If your request is approved, the Court can order any of the following:
- Your spouse may not commit any acts of domestic violence against you
- You may have the use and exclusive possession of your home
- Your spouse must refrain from contacting you or other designated persons (such as children) either in person, telephonically, or by e-mail
- Your spouse may not come near your home, place of employment, school, or other locations necessary to ensure your safety
- Your spouse is prohibited from possessing or purchasing firearms
- Any other order necessary for your protection.
The Order In Action
Once received, the order must be formally served on your spouse by a process server or sheriff to be effective. If you are awarded the exclusive use of your home, your spouse will be allowed one trip into the home to retrieve their belongings while accompanied by a law enforcement officer.
Your spouse may request a hearing to contest the order or parts of it. If he/she does so, the hearing will be held within 10 days, or five days if you were granted the exclusive use of your home. At the hearing, the court will listen to testimony and receive evidence to determine whether the order should stay in place and, if so, whether it should be modified. If the order remains in place, it is valid for one year from the date it was signed.
If you have an Order of Protection and your spouse violates it, report the breach to the police immediately, and report every one thereafter. Domestic violence is a community concern that is taken seriously by our police departments and judicial system.
Obtaining an Order of Protection can help you significantly if you are in fear of your spouse. However, it is not wise to abuse the system by obtaining such an order without a valid basis for doing simply in an effort to get your spouse out of the house or to try to get a perceived upper hand in your divorce case. In the end, it will hurt your case, and you will be wasting not only your own financial resources, but also judicial resources.
Take control of your life and stop living in fear. For more information or for legal representation, contact us at Hallier Stearns PLC.