Does a Protective Order Give Me an Advantage in My Divorce

Clients often wonder if filing for a protective order against their spouse gives them an advantage in their dissolution case. The answer, maybe surprisingly, is: not necessarily.

If you do not have children with the other spouse, your divorce only involves division of assets and liabilities. Whether the other person was physically or emotionally abusive may not have a bearing on how much assets each party will receive. That’s why I don’t encourage filing for protective order as strategy for deviation of the presumptive division of assets in the petitioner’s favor. And, of course, even if you decide to file for a protective order per Indiana Code §34-26-5, you must prove to the court that the statutory requirements for the issuance of one have been met. I’ve witnessed more than one judge’s frustration in having to hear imaginary grievances or issues that do not rise to the level of serious offenses that may be redressed, just because the petitioner wanted to scare the other party into a weaker bargaining position. Protective orders are serious and must be handled as such.

Having said that, of course there are instances in which a protective order is not only available but necessary. For instance, incidences of physical violence, threats of physical violence, sex offenses, and ongoing harassment are serious issues that need to be addressed. If granted, the victim may be awarded exclusive possession of the marital residence, even if it’s temporarily until the conclusion of the case. In addition, it is possible to file criminal charges for an action and qualify for a protective order as a result of the same action.

Ultimately, as with most issues relating to family law, every case is fact-specific and it must be reviewed in relevant context to determine the appropriate and most prudent way to proceed.

This article is for educational purposes only. It does not create an attorney-client relationship and does not constitute legal advice.

Can I Move Without Telling the Other Parent?

Parents with a custody order in Indiana often think that they can relocate without notice to the court or the other parent. According to Indiana Code §31-17-2.2-1, prior to your move you must file a formal notice of intent to relocate with the clerk of the original dissolution or paternity case if a) the relocation will result in an increase of more than 20 miles between the parents’ residences or b) it will prevent the child(ren) from remaining enrolled in their current school.

This gives the other parent the opportunity to object to the relocation. If an objection is filed timely, the case will, most likely, be set for a hearing and the judge will determine whether it’s in the children’s best interest for the relocation to take place.   

If this process is not followed and/or the judge determines that the relocation is not in the children’s best interest, the relocating parent may be charged with the other parent’s attorney fees and, even worse, may lose parenting time or even primary custody, in addition to potential modified child support, depending on the specific circumstances.

That’s why it is crucial to comply with the statute and not make plans to move without court approval, even if it may ultimately lead to a better-paying job, a more stable family environment, and/or better educational opportunities for the children. Sometimes, a better environment for you may equate to deprivation of parenting time for the other parent.

An experienced family law attorney may be able to assess your case and determine the likelihood of a successful notice of intent to relocate and how to use specific outcome-determinative factors to bolster your chance in prevailing.

This article is for educational purposes only. It does not create an attorney-client relationship and does not constitute legal advice.