Does a Protective Order Give Me an Advantage in My Divorce
Filing a Protective Order does not necessarily give the petitioner a leg up during the divorce process, especially when there are no children involved, since the main question during the proceedings is the division of assets and liabilities.
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.