How An Order of Protection Affects A Divorce Case

An Order of Protection, also known as a Restraining Order, may be issued against you or your spouse before or during a divorce. An Order of Protection can affect your divorce case in many ways.

In New York, an Order of Protection can be a criminal matter or a civil matter. If it is a criminal matter, the case will be prosecuted as a crime and the District Attorney’s office will most likely serve as the prosecution. As with any criminal case, the District Attorney has to show that you committed the crime by the standard of “beyond a reasonable doubt.”

In contrast, if the case is a civil matter, then the burden of proof is “preponderance of the evidence”, which essentially means that you prove your case by greater than 50%. Another difference is that there is no District Attorney who prosecutes the case. If you are the accuser, you either have to hire an attorney or you can prosecute the case yourself.

There are also two types of penalties granted in an Order of Protection, they are: (i) a “Refrain From” action(s); and (ii) ‘Stay Away”.

A Refrain From will state what actions or laws you should “refrain from”. Typically, a Refrain From order will state that you are to refrain from harassment, disorderly conduct, assault and a whole litany of other illegal acts.

A Stay Away Order will typically order you to stay away from the residence of the victim, the victim’s employment and other places the victim usually is.

Obviously, if a Stay Away Order is granted and you have to move from one residence to another, this could have profound consequences in your divorce. Not only will you need to find alternate housing in addition a court can take into account domestic violence (i.e. the Order of Protection) in its award of spousal maintenance and child custody.

Although, a Refrain From Order does not automatically result in relocation, it also has serious consequences. If you violate a Refrain From Order, then you could be immediately arrested and face imprisonment and fines. Similar to a Stay Away Order, the court can take into account the Refrain From Order in its award of spousal maintenance and child custody.

David Badanes, Esq. and the Badanes Law Office have helped many individuals who have been a victim of Domestic Violence or who have been falsely accused of Domestic Violence.

If you need a Long Island divorce attorney to help you navigate through a Domestic Violence case and your divorce, then contact David Badanes and the Badanes Law Office, P.C. Call 631-239-1702 or email at The Badanes Law Office has offices in Northport and Uniondale.

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