A mutual restraining order prohibits both parties from having contact with one another. A mutual restraining order aims to prevent further conflict and protect property and assets. Unlike a conventional protective order that protects one spouse against the other, a mutual restraining order requires both spouses to maintain distance. If you need guidance on mutual restraining orders or legal representation to obtain one, an attorney can help.

Understanding Mutual Restraining Orders

As the name suggests, a mutual restraining order prohibits both parties from molesting, abusing, or interfering with each other’s rights or privacy. A mutual restraining order can instruct both parties not to be in contact with one another. This order can be issued when a victim applies for a protection from abuse order, but the defendant serves the victim with a counter-petition. The counter-petition can outline that the alleged victim also abused the defendant. Here is what happens before the judge issues a mutual restraining order:

  • The judge holds a hearing during which the victim and the abuser must be present.

  • The judge must be convinced that the victim and the alleged abuser were primary aggressors and that none of them acted primarily in self-defense.

  • Sometimes, the judge can issue a mutual restraining order without holding a hearing if both parties agree to the mutual restraining order.

A victim can agree to a restraining order against them even if he/she is not the abuser. The rationale behind this agreement is that if the victim does not plan to violate the restraining order, it does not mean much to have a restraining order against them. However, this reasoning can later pose additional challenges. If the judge approves the abuser’s petition for a counter-protective order, the abuser can report a violation that does not even exist. The abuser can also trick the victim into violating the restraining order to have the victim arrested. This can trigger challenges for the victim later on, especially when the victim is seeking child custody, handling immigration matters, or in future restraining order hearings.

The good news is that the judge cannot force either of the parties to consent to a mutual restraining order. The victim has a right to a hearing, during which he/she can defend themselves. In addition, before granting a mutual restraining order, the judge must be convinced, and the alleged abuser must have proved the case against the victim. Whether you are the alleged abuser or the victim, it is crucial to contact an experienced attorney when faced with the issue of a mutual restraining order.

The Key Aspects Of A Mutual Restraining Order

The following are the key aspects of a mutual restraining order:

Mutual Protection

The partners are prohibited from contacting one another. None of the parties should interfere with the other party’s fundamental rights and privacy.

Court Order

The judge must issue a mutual restraining order. Both parties must appear in court for the restraining order hearing. At the hearing, both parties have an opportunity to present evidence of domestic violence or other forms of abuse.

Asset Protection

A mutual restraining order can also include provisions prohibiting both parties from making significant financial decisions or damaging property jointly owned by the spouse.

Violation Consequences

Violating a mutual restraining order can have several consequences. The potential consequences include civil contempt charges, including possible legal charges. In extreme cases, violating a mutual restraining order can lead to legal fines and even imprisonment.

Can Be Temporary Or Long-term

A mutual restraining order can be temporary or long-term, like conventional restraining orders. A long-term mutual restraining order can last for up to five years.

The Protections Offered By A Mutual Restraining Order

A mutual restraining order can offer several types of protection. Here are some of the standard protections the order provides:

  • None of the parties can harm or threaten the other, their child, or any other person in the home.

  • The parties should not contact each other in person, by email, social media, or use another person to contact the other party.

  • One of the parties has to vacate the shared home.

  • The judge can grant temporary custody of the children to one of the parties.s

  • Another person must supervise the parenting time or the visitation time of the non-custodial parent.

  • The judge can arrange for temporary child support.

  • The court can also order temporary alimony or spousal support.

  • The court can order one or both parties to undergo treatment or counseling.

  • Order other social services for one or both parties.

  • Order either party not to give away, sell, harm, or destroy the jointly owned property.

  • The police can help one of the parties remove their possessions from the shared home.

  • None of the parties should abuse or harm the shared pets to threaten or get back at the other party.

How Judges Enforce Mutual Restraining Orders

It is common for abusers to try to obtain restraining orders against the victims as a way of revenge or getting back at them. The good news is that judges are aware of these scenarios. Therefore, the judge can deny the alleged abuser a restraining order even when he/she requests one. However, in some situations, abusive parties can also obtain restraining orders against the alleged victims. When a victim seeks a restraining order, and the alleged abuser also applies for one, the court can issue a mutual restraining order. This implies that either party has a restraining order against the other.

When the judge issues a mutual restraining order, the judge outlines the reasons for issuing the restraining order. The judge also outlines who the primary aggressor is. The primary aggressor is the party more likely to violate or abuse the other party. Why does the judge have to identify the primary aggressor? Identifying the primary aggressor helps law enforcement officers to know the action to take if a violation or a problem arises.

When served with a restraining order notice, it is essential to attend the restraining order hearing, preferably in the company of your attorney. If you fail to participate in the hearing, the judge can favor the other party at your expense. Here is what can happen if one party does not attend the restraining order hearing:

  • The other party can mislead the court, lie against the other, and even spice things up to initiate a criminal case against the absent party.

  • The other party can take away the attention from their abusive traits and make the other party appear to be the aggressive one.

When parties have restraining orders against each other, the police can have a challenge and would probably not know what to do in case of a restraining order violation. It can be challenging for one party to get the police to arrest the other party. Mutual restraining orders can open a leeway for the abuser to harm the victim because abusers can take advantage of the system that seeks to protect victims.

The victim and the alleged abuser must attend the restraining order hearing to air their facts and ensure a fair ruling. Each party should seek the help of an attorney to prepare and represent them during the hearing. At the hearing, each party explains to the judge the history of how the other party has abused them, the past injuries suffered, the police calls, and the medical records to prove the treatment sought after suffering injuries.

The parties can also bring pictures, police reports, or witnesses if available. If this evidence is not available, the parties involved can do the following:

  • If one party believes the other partner is only trying to obtain a restraining order to get back at them for leaving them, he/she can inform the judge. Perhaps the other party is only trying to obtain a restraining order to win custody of the children. Sometimes, one party can seek a restraining order out of jealousy, especially if the other party has a new romantic partner. Sometimes, a partner can file a restraining order just because their friends advised them to do so.

  • As a defense, one of the parties can point out that he/she did not hurt or try to hurt the party, filing a restraining order against them.

  • Another defense is pointing out that you did not make the other party have sexual intercourse with you against their will. This defense can only apply if you are accused of forceful sexual acts against your partner.

Before entering the courtroom, each party should read the other party’s statement to understand the accusations filed against them. Either party can obtain the other party’s statement from the court clerk’s office. One party can inform the judge if the other party’s statement contains false information.

The judge should only issue a restraining order against both spouses if they are in danger of each other. If the judge issues a mutual restraining order, the judge must include statements that make the judge believe that both parties pose a threat to each other. The judge’s report that outlines this information is known as the “findings.” Each party involved can request a copy of the judge’s findings. Any party can present the judge’s findings to their lawyer and use them to file an appeal.

Whether Mutual Restraining Orders Harm Or Protect

When judges are confronted with petitions for protection from both parties, they can issue a temporary protective order to each party. This is a mutual restraining order, also known as dueling restraining order. The order prohibits both parties from doing some things to each other, such as harassing, stalking, menacing, or threatening each other. There must be two distinct petitions for the court to issue a mutual restraining order.

When Mutual Restraining Orders Do Harm

A mutual restraining order can harm if the judge issues an abuser a protective order against the victim. The abuser can later use the protective order against the victim by claiming that the victim menaced, harassed, stalked, or threatened them. If the abuser alleges that the victim has violated the restraining order terms, the victim could end up being arrested and incarcerated. This enhances the abuser’s ability to further abuse the victim.

A mutual restraining order can be dangerous if the abuser uses it to mislead the court against the victim. The mutual restraining order can undermine a victim’s protection and safety. It can increase the risk of additional violence.

Mutual restraining orders can also create confusion among law enforcement officers responsible for enforcing the restraining order. When children are involved, a mutual restraining order can pose additional challenges. Both parties can file allegations against each other. The law enforcement officers can end up arresting both parents, leaving no one to take care of the children. If the police arrest both parents, they would have to bring in child protection officers. The children could end up being taken care of by third parties as their parents are taken to jail. The children would have to remain under the care of third parties until one of the parents is freed from custody to take care of them.

When Do Mutual Restraining Orders Protect?

Sometimes, a mutual restraining order can work for the benefit of both parties. Both parties can file restraining orders against each other at the same time. In some other cases, one party can file a restraining order, and the other can file a counter order immediately after receiving a notice of the restraining order against them. Consenting to a mutual restraining can help the parties avoid a restraining order hearing.

In theory, both parties will be protected by the dueling protective order. In divorce cases, mutual restraining orders can help to prevent additional arguments or disputes. The orders can help to maintain a status quo and protect parties’ rights and assets. This means there would be little to no interference with the divorce proceedings.

A mutual restraining order can help to ensure that both parties adhere to the terms of the orders and the divorce proceedings. A mutual restraining order presumes that both parties are ill-behaved and require protection from one another. The assumption is that none of the parties is a victim, but both parties are abusers.

Whether Courts Should Continue Issuing Mutual Restraining Orders

The effectiveness of a mutual restraining order depends on the involved parties’ willingness to abide by the terms of the restraining order. The order can have a mutual deterrent effect on two people who agree to be constrained by the order. Women activist groups argue that mutual restraining orders hurt women who are domestic violence victims. The victim’s life is in greater danger when the judge issues a mutual restraining order to a batterer. Judges should not issue mutual restraining orders if there is no evidence of abuse from both parties. A restraining order hearing should also be mandatory. Judges should not issue mutual restraining orders to quickly dispatch the court’s caseload or expedite the court’s calendar. The risk that victims face is too significant for the judge to get it wrong by issuing a restraining order to the abuser.

Judges should not give abusers protection that they can further use to abuse, menace, or harass the victim or have them incarcerated. The court should strive to determine whether wrongdoing was committed against one of the parties instead of considering both parties to be abusers. Abusers can take advantage of restraining orders to further control or abuse survivors of domestic violence. Before issuing a mutual restraining order, the judge must establish that both spouses are aggressors in the relationship. It must also be evident that none of the parties acted in self-defense. The reasoning behind this rule is that, in most cases, domestic violence is not mutual but one-sided. Therefore, a mutual restraining order can put the real victim of domestic violence at enhanced risk of additional violence.

The Financial Protection Of Mutual Restraining Order

A mutual restraining order can prohibit parties from hiding or disposing of marital assets. When the court signs a mutual restraining order, it removes the likelihood that either party can misappropriate the jointly owned assets. A mutual restraining order can offer financial protection by covering the following:

Assets And Liabilities

When a mutual restraining order is in place, neither of the parties should sell, conceal, assign, transfer, destroy, or encumber either party’s assets. It does not matter whether the asset is tangible or intangible; the law protects all types of assets.

Insurance And Beneficiary Designations

The order can also prohibit either party from canceling, invading, or borrowing against the joint assets. None of the parties can prepay insurance premiums, change the beneficiary, or take an action that would change the status of a policy or life insurance plan. No change can be made to accident insurance covers, vehicle, homeowners, or liability insurance.

Health Insurance

A mutual restraining order would prohibit any party from canceling or changing any health insurance plan or policy status. One party should not change the deductibles or the other party’s coverage.

Pensions /Retirement Benefits

Neither party should redeem, encumber, borrow against, withdraw funds, or alter the present status of pension and retirement benefits. The protected financial assets include retirement, profit sharing, stock purchase plans, savings, or deferred compensation programs.

Credit Cards And Equity/Credit Lines

Neither party should reduce, increase, or cancel credit card limits or obtain additional credit cards. It is also illegal to increase or decrease equity or credit lines or incur additional debts when a mutual restraining order is in place.

Diverting Mail

No party should hide, destroy, or diversify U.S. electronic or physical mail directed to the other party.

Contracts

When a mutual restraining order is in place, neither party should sign a contract to purchase personal or real property or to purchase any annuity or investment. No party should obtain additional debt outside the usual practice of parties. Endorsing or signing the other party’s name on a check or draft is illegal. Neither party should claim the other party’s tax returns or refunds.

Transactions Allowed When A Restraining Order Is In Place

Even when a mutual restraining order is in place, the parties can still engage in routine financial activities. For example, the order does not prohibit the payment of bills or the withdrawals and deposits in checking and savings accounts. Provided an expense is the household’s welfare, it is allowable. Any payment made to maintain a financial status quo or preserve the parties’ property is permissible.

Both parties are expected to make necessary and reasonable payments to the marital creditors. The parties should also continue paying household expenses and utilities.

If the parties own a business, a mutual restraining order does not prohibit either party from operating a business or engaging in necessary or routine payments and transactions associated with the business.

Violating A Mutual Restraining Order

The partner who violates a mutual restraining order is considered to be in contempt of court. This can lead to hefty costs, sanctions, and fines.

Find An Experienced Restraining Order Attorney Near Me

A mutual restraining order is a court order that mainly applies in divorce and domestic violence cases. It prevents the parties in a divorce or domestic violence case from performing specific actions, like communicating with one another. This order is distinct from the conventional restraining order because both parties are considered to be at fault. The judge can grant a mutual restraining order when both parties file a petition and provide written evidence of abuse or domestic violence. The court must first make detailed findings to establish that both parties acted as primary aggressors.

If you or your loved one needs reliable legal counsel on mutual restraining orders or help in applying for a restraining order, an attorney can help. The Goldman Flores Restraining Order Law Firm has skilled restraining order attorneys who can help you obtain the best possible outcome for your restraining order hearing in California. When you contact us, we will examine your case and advise on the best possible action. We understand that every case is unique. Thus, we do not adopt a one-size-fits-all approach to handling cases. Contact us at 213-341-4087 to speak to one of our attorneys.