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Guidelines

This isn’t a legal cafeteria where you pick up a tray and then pile on as many orders as look good to you. Appropriate restraining orders are available only upon a factual showing that they are necessary. Here’s how the system works.

First, the court is not going to do a thing without being asked, or infringed upon. This applies to all issues, not just temporary orders. It is up to you to see that your needs are taken care of and that your case moves along.

Second, the court isn’t going to waste time with unnecessary orders. Show the court there’s a real problem; otherwise, the court would be overwhelmed with requests for frivolous and spiteful orders.

Third, the court’s not going to issue unenforceable orders, such as "make him be nice." The more specific your request, the better your chance of having it granted. An exception is that you may define specific categories or types of conduct, such as "don’t sell any assets" or "don’t come within 100 feet (by any means)."

Fourth, the more that the order you want impacts your spouse, the more compelling must be the reasons for it. You would want the same consideration applied to you! Assume, for example, that your spouse has moved out but harasses you by dropping in and arguing with you at all hours. You’ll generally be able to get an order that your spouse can’t come around the house except to pick up and return the children at designated times. However, if your spouse is still living in the house, you can’t kick him or her out of the home unless you prove physical violence or very serious emotional harm.

Fifth, the sooner you want the order, the more you must show something awful is about to happen and this order is needed right away to prevent it. If you only want to protect property rights, as in proposed general orders 1, 2, 3 and 4, you must file your papers setting the matter on the court calendar in several weeks. If your spouse plans to take the children to Brazil tomorrow, you probably can get an order today to prevent that from happening. There will still be a hearing in three weeks; however, with the order you have until the hearing, your children will still be here for it.

Sixth, serve a copy of all papers filed with the court on your spouse’s lawyer. Your spouse is entitled to review and rebut your contentions. If you don’t comply with this requirement, the court won’t have jurisdiction, that is, the power, to rule on your request. You must serve any orders that you get on your spouse personally to be able to enforce them.

Getting orders isn’t always technical. My client, John, called one morning to tell me his "ex" must have brainwashed his three teenage boys. The court order gave him his boys each July, he had paid their airfare, and they were supposed to get on the plane at five o’clock that afternoon. He was just informed by his ex-wife, Nancy, the boys were too involved in other things and had decided they didn’t want to go. We acted immediately, and within hours, Nancy was ordered to put the boys on the flight as scheduled, and she did.