The Worst Thing A Woman Can Do In Divorce Proceedings - The Abuse Of Orders of Protection

Huffington Post by Liz Mandarano,  a New York Family and Matrimonial Lawyer and a feminist

Orders of Protection are critical to the safety of many. Some people claim that they are simply pieces of paper that mean nothing. Detractors point to horrible stories where people are abused or murdered despite having an order in place.

I disagree—although we only hear of the tragic endings, orders of protection carry an authority that at least some, if not many, abusers grudgingly respect. I believe these orders have saved countless from horrible mistreatment that would otherwise have occurred.

However, it is also an unfortunate truth that because they are incredibly easy to obtain, orders of protection are misused, often against men. And this false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.

In matrimonial practice, men are drastically more likely to be the spouse who has an order enforced against them at the beginning of a separation or divorce. When a man has had an order of protection issued against him, many automatically think that he must have done something horribly threatening or dangerous to his partner or family in order to have a judge feel compelled to issue an order.

Orders of protection can be “stay away” or “refrain from” in topic. “Refrain from” orders direct a person to behave in a certain way. For example, a refrain from order may direct a person not to threaten another person.

“Stay away” orders are weightier. They force the accused to leave the marital residence and stay away from his partner, home, workplace, and family lest they face prosecution. Notably, stay away orders can remove a person from his home even if his name is on the lease or deed.

There are between 2 and 3 million temporary restraining orders issued in the United States annually*. Despite their huge impact on a person’s emotional and financial well-being, in order to receive a temporary “stay away” order of protection, one needs only to allege that he or she “feels” threatened by their partner. There does not need to be any history of domestic violence whatsoever. There does not have to be an actual verbal threat of domestic violence either. Likewise, there does not need to be evidence of a major overt act, such as stalking or purchasing a weapon.

The modern extreme example of a ruling gone awry involved David Letterman. In 2005, a New Mexico judge granted a woman’s request for a temporary restraining order against Mr. Letterman, claiming that he wanted to marry her and employ her as a co-host. She also alleged that Mr. Letterman forced her to go bankrupt and talked in “code” to her via his show since 1994, causing her sleep deprivation and mental anguish. Thankfully, another judge ultimately quashed that order. However, the issuing judge stood by his ruling.



These orders are issued ex parte, which means the accused has no notice of the proceeding and does not have the opportunity to defend himself prior to its issuance. The burden of proof is the lowest legal standard available- by a preponderance of the evidence, which basically means that a judge has to believe that there is a 51% chance (“more likely than not”) that the allegations are true.

These orders are granted with barely any accountability as to the facts alleged, although they often include a “stay away” provision from minor children.

A temporary order of protection lasts until you have the opportunity for a full court hearing—which unfortunately does not necessarily get scheduled for up to six weeks. Due to clogged judicial systems, sometimes a full hearing can take months. Nor does the hearing necessarily occur at the first court date- adjournments from both sides trying to gather evidence for and against the order are common.

Notably, there is no right to discovery prior to the hearing. And once a hearing takes place, the burden of proof remains the same low standard.

When a false or exaggerated allegation results in a stay away order, many innocent men are suddenly tossed from their homes without any notice. Additionally, they face a sudden and profound financial stress— they must quickly set up another residence to provide for their needs as well as to prove to a court that they have adequate provisions for future child visitations. Many rapidly find themselves having to pay for two households to avoid being accused of shirking their responsibilities. Furthermore, these men often have lost access to necessary legal and personal papers necessary to function or defend themselves.

It is a well-known fact within the matrimonial legal community that many lawyers and their clients use these orders of protection to gain a strategic advantage over their spouse from which it is difficult to recover. And since no judge wants to be the one who “gets it wrong” leading to a tragic result, these orders are easily obtained.

What does the accuser have to gain in misusing orders of protection? A lot of things, including the following:

Judicial requests for exclusive use and occupancy of a marital residence are not often granted, and can take up to six months for a ruling. Therefore, unless an allegation of threat of immediate harm is claimed, couples are forced to live under the same roof unless they can come to some form of agreement. Orders of protection force the accused to immediately leave the residence.

It sets a precedent for custody. Joint custody is presumed. However, if a permanent order of protection is issued containing a finding of domestic abuse, that finding cannot later be disputed. As a result, in many jurisdictions, there is suddenly a rebuttable presumption that the victim should have legal custody. Also, the longer a parent’s access to a child is limited, the less likely that person will be deemed the primary caregiver. In fact, often the accused spouse’s children are now afraid of their father. Many upstanding citizens are shocked to find themselves automatically subject to supervised visitation with a social worker. This may confuse children, wishing to “please” their mother, and scar them unnecessarily for life.

It serves as a bargaining chip—many men are forced to agree to a permanent order of protection either of the same or more limited scope in return for something else such as lower spousal support or more access to children.

It drains resources. It gives the accuser the upper hand in property litigation and spousal support. The ousted spouse has no access to their financial documents, tax forms, personal property, safe deposits, deeds, etc. Although he can always request from his wife’s attorney or the court that these items be made available, the process often takes time, and requests for compliance are often ignored.

It emotionally puts men on the defense. They have no access to their belongings and family. There is the mad dash to find a new place, new clothes, furniture, etc. He is now known as the “bad guy.” And, if he acts too aggressively to refute the allegations, it may make him suddenly seem more menacing. The innocent who are accused are therefore thrown into overwhelming turmoil from which it is difficult to recover.

It creates a windfall for the attorneys. Once a stay away order is issued, the parties cannot communicate with each other. All communications must therefore be carried out via the parties’ lawyers. As a result, there is a strong incentive for the less ethically minded lawyer to protract a legal battle by encouraging this tactic. [...]