By: W. Curtis Wiberg
All too often, in a deteriorating marriage, one spouse calls the police during a very heated argument that may have gotten physical or threatening and one spouse finds himself or herself arrested for a crime involving domestic violence (harassment, assault, criminal mischief, false imprisonment). Once released on bond, that spouse is then often served with divorce papers, a Temporary Restraining Order filed in the divorce case, and a notice of hearing in the Colorado divorce court, which will occur within two weeks.
For the accused spouse, restrained from having contact with the other spouse and maybe the kids, restrained from the marital residence, with a restraining order trial on the near horizon, and facing criminal charges, it’s obviously time to get a lawyer who can either handle both cases, or 2 lawyers (one criminal, the other family law) who coordinate with each other for the best result.
The spouse who is a victim of domestic violence may not know how to follow up so as to finally break away from an abusive relationship. That spouse may not trust the police or prosecution to protect him, her, or the children and may want to know what added protections initiating a divorce action might bring.
Right out of the gate, both spouses are faced with some very tricky issues relating to preparing for that restraining order hearing set to determine whether the temporary order will be made permanent. To the accused spouse, the Miranda warning “everything you say can and will be used against you,” applies such that going in to family law court with the approach of being contrite and apologetic in order to demonstrate to the court that you are no longer a threat to the spouse or the children may serve to help the prosecution gain a conviction in the criminal case. Conversely, if the accused spouse stands silent at the protection order hearing in the family law court, worried about the criminal consequences of making statements, the entry of a permanent protection order against him or her becomes more likely. Entry of that permanent protection order which carries many other ramifications, both criminal and family law related (namely the constant threat of arrest if there is a violation, even years later, the inability to own or possess firearms, and a disadvantage if parenting time and parental responsibilities remain an issue in the divorce case).
One move that is often the best option for an accused spouse in this situation is to request the divorce court and/or the other spouse to keep the temporary protection order “temporary” throughout the divorce proceedings, and to try to add some softer conditions to the terms of the continued temporary protection order (namely terms for visitation with the children, keeping an open line of communication via text or e-mail with the other spouse, and the right to obtain another civil assist to get items of personal property). This option buys time without prejudicing the right to defend against the allegations in both the family law case and the criminal case at a later time. This time allows for more investigation into what the police reports say, to lock in witnesses who may be helpful, and to avoid going into either court without having been able to prepare your best case. The extra time also allows for the emotion and anger of both spouses to calm, allows for a new normal to get established with separate households that is workable for both parties and the kids, and possibly results in the other spouse voluntarily dismissing the family court temporary restraining order as part of the final terms of divorce orders.
Oftentimes, the spouse who is a victim of domestic violence is surprised at how aggressively the police and prosecution proceed once the 911 call is made. The extra time afforded by agreeing to continue the temporary restraining order also gives pause to reflect on the issues while remaining protected. Keep in mind that a temporary restraining order is every bit as honored by law enforcement as a permanent one. As such, no protection is lost to the victim while the temporary protection order is continued and the right to request a permanent protection order later remains intact. Furthermore, an experienced attorney representing a victim of domestic violence will understand the accused spouse’s predicament and may be able negotiate much more favorable terms related to temporary parenting or support without having to risk the viability of the protection order within that two weeks after it’s issued.
The spouse who is a victim in an abusive relationship may need all the protection the law allows, and her divorce attorney will need assess how to proceed with the protection order tied into the other facets of the divorce case. Of course safety and protection will always be the main concerns.
It’s important to note that the criminal cases generally come with their own mandatory protection order pursuant to Colorado Revised Statute Title 18. If there are separate restraining orders in both cases, it’s important for the prosecutor, criminal defense attorney and the divorce attorneys to coordinate so that the criminal court’s protection order ultimately mirror the terms of any restraining order in the family law case.
The issues highlighted above are only a sample of some of the complicated concerns that may arise for both spouses in a Denver divorce involving domestic abuse. Ultimately, a divorce containing allegations of domestic violence, especially one that involves children, requires the guidance of a skilled and experienced Denver divorce attorney. At Plog and Stein, P.C. we represent both victims of domestic abuse and spouses alleged to have committed domestic abuse. If you are in a marriage involving allegations of domestic abuse, our experience and knowledge regarding how to navigate these complicated matters are ready to be utilized as needed.
To schedule a free case evaluation or request a free phone consultation, contact us today.
