Protective Orders – How they can affect your entire family law matter

By Patrick Sullivan

Protective Orders in Virginia come in three types.  An Emergency Protective Order, a Preliminary Protective Order, and a full Protective Order. An Emergency Protective Order is in effect upon service and lasts roughly 48 to 72 hours.  These are granted ex parte (meaning with only one party present and testifying) and are meant to give near-immediate relief to a party in fear or apprehension of physical harm, who have been threatened, or who have indeed suffered physical harm.  A Preliminary Protective Order is similar to an Emergency Protective Order, except that they last for roughly 2 weeks, and are meant to provide protection until a full hearing can be held, with both parties present and evidence taken, to determine whether a full Protective Order should be issued for up to 2 years.  In all three types, the Court may make, as part of the Order, a provision for the following:

  • No contact of any kind between the parties
  • No hostile contact between the parties
  • Limited contact between the parties, but only for certain purposes (child exchange, necessary finances, etc.)
  • Use and possession of a home (including provisions to pay the utilities and mortgage)
  • Use and possession of a vehicle (however it must be jointly titled or in the requesting party’s name)
  • Custody of any children
  • Child support for any children
  • Spousal support for the requesting party

So what does that mean?  It means that it is possible for one party to go before a judge, make allegations and receive an order that gives them the house, the children and support before you are ever aware of anything going on! You will only become aware when you are served with the orders themselves, with notice of the next hearing date.  It is of paramount importance that if you are served with a Protective Order, that you seek legal advice as soon as possible. 

The great mistake here is that most citizens think protective order hearings are just about, “being around each other.” The Orders are extremely powerful (violations of protective orders are treated quite harshly by the Court) and address almost every issue of a divorce or custody action (who gets the house? who gets the kids? when can I see them? how much do I have to pay?).  Additionally, while with a divorce action you have weeks or months to prepare for a hearing, with the option for discovery, in a Protective Order action, you have roughly two weeks to find counsel, prepare for the hearing, and go to trial.

It is the speed and breadth of these Orders that have made them the opening move in a majority of family law cases.  Parties have learned that they can go before a judge, make accusations, force the other party out of a home, force the other party to pay support and keep the children from them, all with one-sided hearings until the full Protective Order trial.  The responding party is immediately put to disadvantage and must fight his or her way back to “even” for the rest of the litigation. If you are served with a protective order, please take the matter seriously and seek counsel as soon as possible. Be prepared to address all the issues listed above and to work with counsel in preparing your best possible defenses.