Does a divorce contain an automatic restraining order?
Full Question:
Answer:
Between the time a dissolution or divorce action is filed and the time a judgment becomes effective, the court may use temporary orders to resolve any issue in the case. Temporary orders address the immediate concerns of the parties, but also frequently form the basis
for the permanent orders later in the final decree. A restraining order is a temporary order of a court to preserve current conditions as they are until a hearing is held at which both parties are present. A restraining order may be issued in a divorce matter to prevent taking a child out of the county or to prohibit one of the parties from selling marital property. Also, a person who is a victim of harassment may seek a restraining order from the court. The distance required to be
maintained is governed by the language of each specific order, which may include places of work, school, etc. Temporary restraining orders typically expire on the hearing date, but local law varies.
Protective orders are typically used in domestic disputes to ban one
party from contact with another or from interfering with an order of the
court with respect to child visitation or custody rights. They are also
frequently used in cases of spousal abuse to keep the violent party from
coming into contact with the victim. Protective orders are usually
temporary measures that the court uses in order to remedy suspected
destructive activity while the parties gather and present evidence
showing that a more permanent remedy is required. Protective orders have
a wide range of temporary duration. Typically, they last for one year
with extensions possible under certain particular circumstances.
Violations of protective orders also vary widely. Virtually all states
require transmission of protective orders to local law enforcement
agencies.
The following are Colorado statutes:
14-10-107. Commencement — pleadings — abolition of existing defenses —
automatic, temporary injunction — enforcement.
(2) The petition in a proceeding for dissolution of marriage or legal
separation shall allege that the marriage is irretrievably broken and
shall
set forth:
(a) The residence of each party and the length of residence in this
state
(b) The date and place of the marriage;
(c) The date on which the parties separated;
(d) The names, ages, and addresses of any living children of the
marriage
and whether the wife is pregnant;
(e) Any arrangements as to the allocation of parental responsibilities
with respect to the children of the marriage and support of the children
and the maintenance of a spouse;
(f) The relief sought; and
(g) A written acknowledgment by the petitioner and the co-petitioner,
if
any, that he or she has received a copy of, has read, and understands
the
terms of the automatic temporary injunction required by paragraph (b) of
subsection (4) of this section.
(4)(b)(I) Upon the filing of a petition for dissolution of marriage
or
legal separation by the petitioner or copetitioner or by a legal
guardian
or conservator on behalf of one of the parties and upon personal service
of the petition and summons on the respondent or upon waiver and
acceptance of service by the respondent, a temporary injunction shall be
in effect against both parties until the final decree is entered or the
petition is dismissed or until further order of the court:
(A) Restraining both parties from transferring, encumbering,
concealing,
or in any way disposing of, without the consent of the other party or an
order of the court, any marital property, except in the usual course of
business or for the necessities of life and requiring each party to
notify
the other party of any proposed extraordinary expenditures and to
account
to the court for all extraordinary expenditures made after the
injunction
is in effect;
(B) Enjoining both parties from molesting or disturbing the peace of
the
other party;
(C) Restraining both parties from removing the minor child or children
of
the parties, if any, from the state without the consent of the other
party
or an order of the court; and
(D) Restraining both parties, without at least fourteen days' advance
notification and the written consent of the other party or an order of
the
court, from canceling, modifying, terminating, or allowing to lapse for
nonpayment of premiums, any policy of health insurance, homeowner's or
renter's insurance, or automobile insurance that provides coverage to
either of the parties or the minor children or any policy of life
insurance
that names either of the parties or the minor children as a beneficiary.
(II) The provisions of the injunction shall be printed upon the
summons
and the petition and the injunction shall become an order of the court
upon
fulfillment of the requirements of subparagraph (I) of this paragraph
(b).
However, nothing in this paragraph (b) shall preclude either party from
applying to the court for further temporary orders, an expanded
temporary
injunction, or modification or revocation under section 14-10-108.
(4.1) With regard to the automatic, temporary injunction that becomes
effective in accordance with paragraph (b) of subsection (4) of this
section when a petition for dissolution of marriage or legal separation
is
filed and served, whenever there is exhibited by the respondent to any
duly
authorized peace officer as described in section 16-2.5-101, C.R.S., a
copy
of the petition and summons duly filed and issued pursuant to this
section,
or, in the case of the petitioner, a copy of the petition and summons
duly
filed and issued pursuant to this section, together with a certified
copy
of the affidavit of service of process or a certified copy of the waiver
and acceptance of service, and the peace officer has cause to believe
that
a violation of that part of the automatic, temporary injunction which
enjoins both parties from molesting the other party has occurred, such
peace officer shall use every reasonable means to enforce that part of
the
injunction against the petitioner or respondent. A peace officer shall
not
be held civilly or criminally liable for his or her action pursuant to
this
subsection (4.1) if the action is in good faith and without malice.
14-10-108. Temporary orders in a dissolution case.
(1) In a proceeding for dissolution of marriage, legal separation, the
allocation of parental responsibilities, or declaration of invalidity of
marriage or a proceeding for disposition of property, maintenance, or
support following dissolution of the marriage, either party may move for
temporary payment of debts, use of property, maintenance, parental
responsibilities, support of a child of the marriage entitled to
support,
or payment of attorney fees. The motion may be supported by an affidavit
setting forth the factual basis for the motion and the amounts
requested.
(1.5) The court may consider the allocation of parental
responsibilities
in accordance with the best interests of the child, with particular
reference to the factors specified in section 14-10-124 (1.5).
(2) As a part of a motion of such temporary orders or by an
independent
motion accompanied by an affidavit, either party may request the court
to
issue a temporary order:
(a) Restraining any party from transferring, encumbering, concealing,
or
in any way disposing of any property, except in the usual course of
business or for the necessities of life, and, if so restrained,
requiring
him to notify the moving party of any proposed extraordinary
expenditures
and to account to the court for all extraordinary expenditures made
after
the order is issued;
(b) Enjoining a party from molesting or disturbing the peace of the
other
party or of any child;
(c) Excluding a party from the family home or from the home of the
other
party upon a showing that physical or emotional harm would otherwise
result.
(2.3) and (2.5) (Deleted by amendment, L. 2004, p. 553, § 4, effective
July 1, 2004.)
(3) A party to an action filed pursuant to this article may seek, and
the
court may issue, a temporary or permanent protection order pursuant to
the
provisions of section 13-14-102, C.R.S.
(4) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1,
2004.)
(5) A temporary order or temporary injunction:
(a) Does not prejudice the rights of the parties or the child which
are
to be adjudicated at subsequent hearings in the proceeding;
(b) May be revoked or modified prior to final decree on a showing by
affidavit of the facts necessary to revocation or modification of a
final
decree under section 14-10-122; and
(c) Terminates when the final decree is entered, unless continued by
the
court for good cause to a date certain, or when the petition for
dissolution or legal separation is voluntarily dismissed.
(6) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1,
2004.)
(7) At the time a protection order is requested pursuant to section
13-14-102, C.R.S., the court shall inquire about, and the requesting
party
and such party's attorney shall have an independent duty to disclose,
knowledge such party and such party's attorney may have concerning the
existence of any prior protection orders or restraining orders of any
court
addressing in whole or in part the subject matter of the requested
protection order.
14-4-105. Violations of orders.
A person failing to comply with any order of the court issued pursuant
to
this article shall be found in contempt of court and, in addition, may
be
punished as provided in section 18-6-803.5, C.R.S.18-6-803.5. Crime of violation of a protection order — penalty — peace
officers' duties.
(1) A person commits the crime of violation of a protection order if,
after the person has been personally served with a protection order that
identifies the person as a restrained person or otherwise has acquired
from
the court actual knowledge of the contents of a protection order that
identifies the person as a restrained person, such person:
(a) Contacts, harasses, injures, intimidates, molests, threatens, or
touches the protected person or protected property, including an animal,
identified in the protection order or enters or remains on premises or
comes within a specified distance of the protected person, protected
property, including an animal, or premises or violates any other
provision
of the protection order to protect the protected person from imminent
danger to life or health, and such conduct is prohibited by the
protection
order; or
(b) Except as permitted pursuant to section 18-13-126 (1)(b), hires,
employs, or otherwise contracts with another person to locate or assist
in
the location of the protected person.
(1.5) As used in this section:
(a) "Protected person" means the person or persons identified in the
protection order as the person or persons for whose benefit the
protection
order was issued.
(a.5)(I) "Protection order" means any order that prohibits the
restrained person from contacting, harassing, injuring, intimidating,
molesting, threatening, or touching any protected person or protected
animal, or from entering or remaining on premises, or from coming within
a specified distance of a protected person or protected animal or
premises or any other provision to protect the protected person or
protected animal from imminent danger to life or health, that is issued
by
a court of this state or a municipal court, and that is issued pursuant
to:
(A) Article 14 of title 13, C.R.S., section 18-1-1001, section
19-2-707,
C.R.S., section 19-4-111, C.R.S., or rule 365 of the Colorado rules of
county court civil procedure;
(B) Sections 14-4-101 to 14-4-105, C.R.S., section 14-10-107, C.R.S.,
section 14-10-108, C.R.S., or section 19-3-316, C.R.S., as those
sections
existed prior to July 1, 2004;
(C) An order issued as part of the proceedings concerning a criminal
municipal ordinance violation; or
(D) Any other order of a court that prohibits a person from
contacting,
harassing, injuring, intimidating, molesting, threatening, or touching
any
person, or from entering or remaining on premises, or from coming within
a
specified distance of a protected person or premises.
(II) For purposes of this section only, "protection order" includes
any
order that amends, modifies, supplements, or supersedes the initial
protection order. "Protection order" also includes any restraining order
entered prior to July 1, 2003, and any foreign protection order as
defined
in section 13-14-104, C.R.S.
(b) "Registry" means the computerized information system created in
section 18-6-803.7 or the national crime information center created
pursuant to 28 U.S.C. sec. 534.
(c) "Restrained person" means the person identified in the order as
the
person prohibited from doing the specified act or acts.
(d) (Deleted by amendment, L. 2003, p. 1003, § 6, effective July 1,
2003.)
(2)(a) Violation of a protection order is a class 2 misdemeanor;
except
that, if the restrained person has previously been convicted of
violating
this section or a former version of this section or an analogous
municipal
ordinance, or if the protection order is issued pursuant to section
18-1-1001, the violation is a class 1 misdemeanor.
(a.5) A second or subsequent violation of a protection order is an
extraordinary risk crime that is subject to the modified sentencing
range
specified in section 18-1.3-501 (3).
(b) (Deleted by amendment, L. 95, p. 567, § 3, effective July 1,
1995.)
(c) Nothing in this section shall preclude the ability of a
municipality
to enact concurrent ordinances. Any sentence imposed for a violation of
this section shall run consecutively and not concurrently with any
sentence
imposed for any crime which gave rise to the issuing of the protection
order.
(3)(a) Whenever a protection order is issued, the protected person
shall
be provided with a copy of such order. A peace officer shall use every
reasonable means to enforce a protection order.
(b) A peace officer shall arrest, or, if an arrest would be
impractical
under the circumstances, seek a warrant for the arrest of a restrained
person when the peace officer has information amounting to probable
cause
that:
(I) The restrained person has violated or attempted to violate any
provision of a protection order; and
(II) The restrained person has been properly served with a copy of the
protection order or the restrained person has received actual notice of
the
existence and substance of such order.
(c) In making the probable cause determination described in paragraph
(b)
of this subsection (3), a peace officer shall assume that the
information
received from the registry is accurate. A peace officer shall enforce a
valid protection order whether or not there is a record of the
protection
order in the registry.
(d) The arrest and detention of a restrained person is governed by
applicable constitutional and applicable state rules of criminal
procedure.
The arrested person shall be removed from the scene of the arrest and
shall
be taken to the peace officer's station for booking, whereupon the
arrested
person may be held or released in accordance with the adopted bonding
schedules for the jurisdiction in which the arrest is made, or the
arrested
person may be taken to the jail in the county where the protection order
was issued. The law enforcement agency or any other locally designated
agency shall make all reasonable efforts to contact the protected party
upon the arrest of the restrained person. The prosecuting attorney shall
present any available arrest affidavits and the criminal history of the
restrained person to the court at the time of the first appearance of
the
restrained person before the court.
(e) The arresting agency arresting the restrained person shall forward
to
the issuing court a copy of such agency's report, a list of witnesses to
the violation, and, if applicable, a list of any charges filed or
requested
against the restrained person. The agency shall give a copy of the
agency's
report, witness list, and charging list to the protected party. The
agency
shall delete the address and telephone number of a witness from the list
sent to the court upon request of such witness, and such address and
telephone number shall not thereafter be made available to any person,
except law enforcement officials and the prosecuting agency, without
order
of the court.
(4) If a restrained person is on bond in connection with a violation
or
attempted violation of a protection order in this or any other state and
is
subsequently arrested for violating or attempting to violate a
protection
order, the arresting agency shall notify the prosecuting attorney who
shall
file a motion with the court which issued the prior bond for the
revocation
of the bond and for the issuance of a warrant for the arrest of the
restrained person if such court is satisfied that probable cause exists
to
believe that a violation of the protection order issued by the court has
occurred.
(5) A peace officer arresting a person for violating a protection
order
or otherwise enforcing a protection order shall not be held criminally
or
civilly liable for such arrest or enforcement unless the peace officer
acts in bad faith and with malice or does not act in compliance with
rules adopted by the Colorado supreme court.
(6)(a) A peace officer is authorized to use every reasonable means to
protect the alleged victim or the alleged victim's children to prevent
further violence. Such peace officer may transport, or obtain
transportation for, the alleged victim to shelter. Upon the request of
the protected person, the peace officer may also transport the minor
child of the protected person, who is not an emancipated minor, to the
same shelter if such shelter is willing to accept the child, whether or
not there is a custody order or an order allocating parental
responsibilities with respect to such child or an order for the care and
control of the child and whether or not the other parent objects. A
peace
officer who transports a minor child over the objection of the other
parent shall not be held liable for any damages that may result from
interference with the custody, parental responsibilities, care, and
control of or access to a minor child in complying with this subsection
(6).
(b) For purposes of this subsection (6), "shelter" means a battered
women's shelter, a friend's or family member's home, or such other safe
haven as may be designated by the protected person and which is within a
reasonable distance from the location at which the peace officer found
the
victim.
(7) The protection order shall contain in capital letters and bold
print a notice informing the protected person that such protected person
may either initiate contempt proceedings against the restrained person
if
the order is issued in a civil action or request the prosecuting
attorney
to initiate contempt proceedings if the order is issued in a criminal
action.
(8) A protection order issued in the state of Colorado shall contain a
statement that:
(a) The order or injunction shall be accorded full faith and credit
and
be enforced in every civil or criminal court of the United States,
another state, an Indian tribe, or a United States territory pursuant to
18 U.S.C. sec. 2265;
(b) The issuing court had jurisdiction over the parties and subject
matter; and
(c) The defendant was given reasonable notice and opportunity to be
heard.
(9) A criminal action charged pursuant to this section may be tried
either in the county where the offense is committed or in the county in
which the court that issued the protection order is located, if such
court is within this state.