How does a Protective Order affect a divorce or custody case?

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In Texas, when a party received a Protective Order, it’s usually one of two varieties that effect a divorce or custody case.

The initial protective order, Emergency Protective Order (EPO), goes into place if there is an arrest. EPOs usually last from 30 to 90 days only. They are limited in scope. Their focus is to prevent the alleged perpetrator from contacting the alleged victim or going to the house/work of the victim. These are usually part of the criminal case associated with the arrest.

Protective Orders (not EPOs) require a formal civil court case and are not automatic just due to an arrest. Parties must file a case requesting the full Protective order. A party can request emergency action but usually it’s not needed if an EPO is already in place. A Court hearing is held and a Judge/Court determines if a full Protective Order is needed. These can go up to 2 years, or longer in extenuating circumstances. They usually cover what contact can be made between the parties, if any, and how far away parties need to stay from each other. Sometimes child visitation might be rolled into these Orders, but they’re usually very limited schedules. They do NOT address anything to do with property division or debts.

In a Divorce or custody proceedings in Texas, a Protective Order has no effect on title to real estate. See Tex. Fam. Code 85.023. That means you cannot take someone off the title to a house or other piece of real estate just because a protective order was issued.

A Protective Order might be used as the basis for post-divorce spousal maintenance. Even in a short term marriage, family violence (if a criminal conviction or deferred adjudication) might follow from a protective order. See Tex. Fam. Code 8.051. If that’s the case, then a party can request spousal maintenance (known as alimony in other states) just based on that criminal family violence conviction.

A Protective Order does have an effect on dividing the community/marital estate. Texas Family Code 6.001 through 6.007 provide the grounds for divorce in Texas. If you prove one of the “fault” grounds, cruelty and conviction of a felony being one of those fault grounds, then you may be entitled to a larger share of the marital estate.

In a Texas custody case, or divorce where custody is also a factor, a Protective Order has a huge impact. If the Judge/Court determines there has been family violence (the reason for the protective order) that may limit the party’s right to be a joint managing conservator, what decision making rights they have over their child/ren, and what visitation schedule would be safe for the children. See Tex. Fam. Code 153.004 and 153.005.

The best way to handle a protective order is when one is first being requested. Someone might agree to a protective order “to make things easier” when the facts do not support it. This has disastrous effects on their divorce and/or custody case. If you have a protective order case contact an attorney in your area to get your legal options.

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