A North Carolina restraining order between spouses is called a domestic violence protective order. When a spouse obtains a protective order against the other spouse, the order can potentially affect every aspect of a subsequent divorce. The effect in a particular case depends on the circumstances surrounding the order and the contents of the order itself.
If one spouse initiates a domestic violence protective order request or a divorce proceeding involving a protective order, it is critical for each party to be represented by an experienced family law attorney to ensure protection of their respective legal rights. At The Twiford Law Firm, our respected domestic law attorneys assist individuals and families with all types of matters involving family law, including protective orders and divorce. If we can help you with either type of matter or another domestic issue, we welcome you to contact us.
A North Carolina restraining order can have a substantial impact on a divorce, particularly in the early stages of separation. When a court issues a protective order, it may include temporary awards of child custody and support, spousal support, and property division. These temporary awards will remain in place while the parties litigate their separation and divorce. The temporary awards in a protective order can affect the resolution of some or all of those matters during a divorce proceeding.
In some cases, the parties can reach agreement on some or all of the issues relating to the divorce. If that occurs, they ask the judge to approve the agreement as part of the divorce. The court has wide latitude in making decisions during a divorce proceeding and is not required to accept the terms of an agreement between the parties. Similarly, a judge is not bound by the terms of a North Carolina protective order, if one exists.
When the spouses cannot agree on aspects of the divorce, the court receives evidence and makes those determinations. A protective order is part of the evidence considered by the court. The judge can take into account the circumstances surrounding the order and the contents of the order itself in deciding any issue during the divorce proceeding. However, the judge is not bound by the terms of the protective order and makes decisions based on all the evidence presented in court.
Although the court in the divorce case is not bound by the protective order, the divorce judge is bound by the findings of fact made in a protective order. For example, if the court in the protective order found a parent to be unfit, that finding of fact follows the parent throughout the custody hearing. That is one extremely critical reason why both parties should have an attorney present at a protective order hearing.
A protective order proceeding moves at a very quick pace and is heard within 30 days of filing. Custody, child support, and spousal support can take several months to get into court. Because the protective order proceeding has the potential to significantly impact subsequent divorce, custody, and support proceedings, representation by legal counsel is extremely important for both parties.
Issues relating to child custody, support, and visitation are among those most likely to be affected by a protective order. Court determinations about these matters are based on what is in the best interest of the child.
The existence of a protective order that indicates domestic violence or threats of violence affects a child’s welfare, either directly or indirectly. North Carolina laws specifically require the court to take the presence of domestic violence claims into account in making decisions that affect the best interest, welfare, and safety of a child. The judge considers all relevant facts, including those in the protective order, in awarding custody, determining visitation rights, and deciding on appropriate support for the child.
A protective order also can affect the amount of spousal alimony (support) awarded as part of a divorce decree. Often, protective orders include terms relating to housing for a spouse and children. The court takes those provisions and any other terms of the order that are relevant to alimony and spousal support into account in determining the appropriate level of spousal support.
In the absence of an agreement between spouses about property division, North Carolina law provides for equitable distribution of marital and divisible property when a divorce occurs. Equitable generally means equal, unless an equal division is not appropriate in the specific circumstances.
A judge can make an unequal division of marital property based on a long list of statutory factors. While some states (like New York) include domestic violence as a consideration in property division, North Carolina does not. Fault or conduct of a spouse (including domestic violence) does not enter into an equitable distribution determination in North Carolina, except in limited circumstances, such as when the conduct affects the property or its value.
However, when there is a domestic violence protective order, the order may present facts and circumstances that justify an unequal division, such as reckless or malicious destruction of property or the need for housing for a spouse and children. If that is the case, the judge may take those facts into account.
When a court issues a protective order, the order addresses the specific circumstances of the parties involved in the proceeding. It may include a number of different prohibitions or restrictions that forbid a spouse from contacting or interacting with the spouse who requested the order. The terms may relate to personal property (including pets), possession of the marital residence, child and spousal support, child custody, and more. The order also includes findings of fact that support issuance of the order.
In a particular divorce case, the effect of a protective order depends significantly on the marital situation, the circumstances relating to the order, and the specific terms and findings of fact in the order itself. If you anticipate a divorce proceeding in a situation where there is a protective order, the only way to ascertain the potential impact of the protective order on the divorce is to talk with an experienced, knowledgeable family law attorney.
Additional details about domestic violence protective orders and divorce in North Carolina are available in these other articles from our family law attorneys:
At The Twiford Law Firm, our family and domestic law attorneys help clients with all types of issues, including North Carolina domestic violence protective orders and divorce. With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Call us at 252-338-4151 (Elizabeth City) or 252-435-2811 (Moyock) or complete our online form to schedule an initial consultation.