by Samuel K. Darling, Bellevue Divorce Lawyer
How do you get an immediate restraining order in a Washington divorce or family law matter? The self-explanatory forms are on Washington’s Court Forms Website under Family Law > Divorce > Immediate Restraining Order. You also need to know local county rules regarding motions. If you lack time to learn them, speak briefly with a local lawyer, LLLT, or family law facilitator. Facilitators only charge $10 per session (but can only answer basic questions).
See the remainder of this article for fuller explanations.
Table of Contents
1) What Is an Immediate Restraining Order
2) What Are Automatically Issued Temporary Restraining Orders
3) The Process of Moving for an Immediate Restraining Order
4) Can I Get a Permanent Restraining Order
5) Should I Request a Restraining Order or DV Protection Order
I. What Is an Immediate Restraining Order?
In a Washington divorce or family law case, an immediate restraining order closely relates to a temporary order. Both provide temporary relief while the case is pending, which takes about a year on average. The main difference between the two is speed. A request for temporary orders typically requires about a two-week process before the court decides whether to grant the relief. An immediate restraining order, on the other hand, can take effect immediately, with little or no notice to the other side. Whenever the court grants immediate restraints, the order schedules a return “show cause” hearing approximately two weeks later to decide whether to dismiss the immediate restraints or convert them to a temporary restraining order. A temporary restraining order, like any other temporary order, generally lasts until entry of final orders, such as the divorce decree.
To qualify for an immediate restraining order, you must present evidence of an emergency – a significant risk of “irreparable harm”.
The most common emergencies pertain to 1) possible domestic violence (such as if the other party hitting or threatening to kill you), 2) the other party threatening to abscond with the kids, or 3) the other party trying to do something especially harmful with money or assets, such as removing you from health insurance or attempting to transfer a large sum of money to a country that does not cooperate with the United States.
Immediate restraints tend to address these issues by ordering the other party to:
- DV-Related Restraints. Leave the family home, not come near you (and the kids, if any), and not stalk or harass you (and the kids);
- Custody. Leave the children in your care or keep them in Washington; and
- Financial. Not to do anything with property or insurance other than in the ordinary course of business.
An immediate restraining order often includes a request for standard temporary orders. The state’s template Motion for Immediate Restraining Order even includes a clearly delineated section for you to request standard temporary orders. The court makes no decision regarding standard temporary orders until the return hearing, usually about two weeks after issuance of the Immediate Restraining Order.
Standard temporary orders can address virtually all topics fitting within the scope of your case. Common temporary orders include a determination of who will stay in the family home (if property division is in issue), who will pay what bills (if property division is in issue), who drives which car (if property division is in issue), a temporary parenting plan (if child custody is in issue), a temporary child support order (if child support is in issue), appointment of a Guardian ad Litem (if child custody is in issue), temporary spousal maintenance (in a divorce or legal separation), suit money (an award of money to pay an attorney), and DV-related restraints.
There are four primary limitations upon what a court can do in temporary restraining orders / temporary orders. The jurist should not 1) make a permanent asset division, 2) force the sale of illiquid assets like the family home (can be done but only under extraordinary circumstances), 3) give someone else the power to adopt the parenting plan (only a judge or commissioner can decide the parenting plan), or 4) require the parties to file taxes jointly (state courts arguably lack authority to do this).
II. What Are Automatically Issued Temporary Restraining Orders?
Some county courts automatically issue basic temporary restraining orders anytime someone starts a family law case, such as a divorce. These orders typically prevent either party from doing anything drastic with property or debts, moving the kids, or changing insurance coverage, without court permission. Unlike the types of immediate restraining orders a party might request, automatic restraints do not have a return hearing two weeks after their implementation, and they remain in effect until a party files a motion to modify them or the case ends, such as when the court signs a divorce decree.
III. The Process of Moving for an Immediate Restraining Order.
A motion for an immediate restraining order falls under a unique category called “show cause orders”. Our firm has a separate article on How to Get Show Cause Orders. Apply the general guidance stated there, but use the forms specified here.
Draft he following initial documents: a) a Motion for Immediate Restraining Order, b) a proposed Immediate Restraining Order (a “show cause order” that takes effect with little or no notice), c) a proposed Temporary Restraining Order (the order a jurist would sign at the return hearing), and d) a proposed Family Law Order (to be signed at the return hearing). You can find all four documents on Washington’s Court Forms Website under Family Law > Divorce > Immediate Restraining Order. You might have to edit the form slightly if your case is not a divorce.
You should also prepare one or more declarations explaining why the court should grant your motion. Click here for an article on writing declarations in support of a motion.
To support any request for temporary financial orders, prepare a Financial Declaration. The bottom of the financial declaration lists financial source documents you should provide if you’re able. Gather those financial source documents and put a Sealed Financial Source Documents Cover Sheet on them as the first page. If child custody is in issue, prepare all of the following documents that might be relevant: a) a proposed temporary Parenting Plan, b) proposed Child Support Worksheets; c) proposed temporary Child Support Order, and d) Order Appointing Guardian ad Litem. You can find templates on Washington’s Court Forms Website under Family Law, but the documents tend to be spread out under different categories. Click the links in this sentence for articles on drafting parenting plans and performing child support calculations.
Once done drafting these documents, make several copies for a total of at least four sets including the originals. You should have all these documents ready before proceeding to step II(2) of How to Get Show Cause Orders, the ex parte hearing.
IV. Can I Get a Permanent Restraining Order?
Yes, at least for most types of family law cases, such as divorce, legal separation, parentage action (parents who did not marry), and third-party custody (non-parents seeking custody). It is clear these case types can result in a permanent or “final” restraining order. A court can sign a final restraining order along with all the other final orders at the end of the case. If you want a final restraining order, make sure to include the request in your petition (such as your petition for divorce) or in your response to the petition. A final restraining order is not truly permanent though; it usually only lasts 12 months, with the option to make it last longer for good cause. See the Washington’s Court Forms Website under Family Law > Divorce > Immediate Restraining Order for a template. It is the same template as for a temporary restraining order, only you check the box for “final” instead of “temporary”.
V. Should I Request a Restraining Order or DV Protection Order?
If your case does not belong to a case-type that specifically authorizes the court to issue a restraining order, you should seek a DV protection order. For example, it would be prudent to seek a DV protection order in a petition for dissolution of a committed intimate relationship (people who lived in a marital like relationship).
Otherwise, a restraining order is more common in our firm’s experience. It affords all the protection of DV orders. It can even protect your child(ren) from the opposing party.
A restraining order comes with two comparative advantages. Unlike DV orders, a restraining order does not require a separate petition. Moreover, you can combine a motion for an immediate or temporary restraining order with a motion for all other types of temporary orders. In net effect, you can get all your requested relief in one fell swoop, so to speak.
A DV protection order has many of the same qualities. Like a restraining order, it 1) can protect your and your child(ren) from the opposing party, 2) typically lasts a year absent good cause to extend it, and 3) can be implemented immediately (with a return hearing about two weeks later).
Additionally it comes with three comparative benefits:
- Our firm has heard at least one law enforcement officer say his unit prioritizes DV protection orders over restraining orders, though the enforcement process seems largely identical.
- The process of asking the court to renew a DV protection order (extending it for another year) appears to be simpler than renewing a restraining order. Washington State publishes forms for DV order renewals, which are somewhat common. The state publishes no renewal forms for full restraining orders.
- DV orders can go into effect before filing your primary petition, such as your divorce petition. This is because a DV order is by separate petition. You can later link the DV proceeding with the subsequent divorce proceeding. This increases procedure but allows you to obtain protection before your main case is ready.
That’s it! Hopefully this article was helpful. Our firm believes in making quality legal information available for free on the internet. For more free articles, guides, and videos, visit our website and click the resources tab in the upper right corner.
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The most abused order in a dissolution the emergency protection order