It is no secret that protection orders can be used as a devastating weapon during a divorce. From forcing the accused out of their home to preventing them from contacting their children, the ramifications of having a restraining order filed against you are immense.
While the intention is to keep people safe from dangerous situations, the lack of evidence required to obtain an order of protection and the advantages it gives to the party filing the charges creates a system that is easily exploited through false claims.
In fact, during child custody disputes, up to 70 percent of domestic violence allegations are deemed to be unnecessary or fabricated.
Because of the far-reaching consequences of false abuse charges during a divorce, you need to be prepared to fight these accusations if they arise — something that is often far easier said than done.
A low threshold of evidence
The first step in obtaining a permanent order of protection is to file for a Temporary Restraining Order, which simply requires telling a judge you think it is necessary.
This is done ex parte, meaning the defendant does not get the opportunity to defend himself. Since judges do not want to be on the wrong end of denying the request and then having a tragedy occur, the majority of the time it will be granted — even if the accused has no prior history of violence.
Domestic violence is taken very seriously by the courts, and it covers a much larger scope than people often realize. If someone simply claims to feel threatened, this can be considered grounds for a temporary protection order, which instantly changes the dynamics of a divorce or custody dispute.
Without having the opportunity to refute any claims, give their side of the story or possibly without knowledge that charges were even filed, the accused can suddenly find themselves kicked out of their home and have their children taken away for at least as long as it takes to hold a formal hearing.
Fighting false allegations of abuse
While you are essentially guilty until proven innocent if your spouse or significant other files claims of abuse during a divorce or custody dispute, there are steps you can take to have the charges dismissed during the full hearing:
Seek legal representation immediately — If you do not already have an attorney, your hand has been forced in the matter as expert legal guidance will certainly increase your chance of minimizing the impact of the claims.
Know the law — Each state will have their own set of standards for what constitutes domestic violence, so study up on what is considered abuse by the letter of the law in your jurisdiction. This is a big reason having an attorney is crucial for building a solid defense.
Prepare evidence — Texts, emails, video and audio recordings or any other sort of evidence that defends your side of the case can be presented to the court during your hearing. Exhibits that portray you in a good light or shows an ulterior motive by the other party may help prove your innocence.
Showing motivation to lie is a plus — Proof that the supposed victim had threatened to allege abuse in an attempt to gain advantage in your divorce or custody dispute will be very compelling in discrediting the accuser’s testimony.
Gather witnesses — Hopefully, you can find witnesses to the supposed events who will testify that they never happened or that the accounts given by the accuser are far overblown. Even if they were not there to directly witness the alleged abuse, they may be able to support an alibi that conflicts with the accusations.
Compose yourself at the hearing — Presenting a good image to the judge will go a long way toward helping your credibility. Do not scoff or laugh at testimony presented by the opposing party, no matter how ridiculous the claims may be. Being professional with your responses and in your demeanor will only help your credibility.
While it isn’t easy to fight allegations of abuse, even if they are completely fabricated, it is possible to minimize the impact they have on your case if you are able to prepare a solid defense. It is vital to quickly take action to minimize the impact of the charges, even in cases where they are clearly false and the accused has no history of violence.
Contact an attorney and begin preparing your defense immediately — you need to refute these sorts of claims as soon as possible to keep yourself in a good position for the remainder of the divorce or custody dispute.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”
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