Our clients often ask if they should “put a TRO” on the other party. And sometimes they don’t ask us; they just do it and tell us after the fact.
Should you get a TRO? You’ll get lots of bad advice on this. So much so, that the Petition form now asks who told you to file it. Cops, social workers, pastors, Aunt Millie in Cincinnati—-everybody runs around telling you that you ought to get a TRO.
Take your advice from attorneys who deal with these cases on a regular basis.
Filing an Ex Parte Petition for Protection and Temporary Restraining Order is fairly easy, and you don’t need a lawyer to do so. However, about ten days later, there will be a hearing. At the hearing, the other side might agree to an Order for Protection, or the court might listen to your evidence and decide you’ve proven your case. On the other hand, the court might also find that your evidence is insufficient and dismiss your case. Lots of folks handle these hearings on their own, but having a lawyer represent you is always the safer course of action.
To prevail at a hearing, the petitioner must demonstrate abuse. Abuse isn’t whatever you happen to feel is abusive. It’s what the Legislature defined it as. Anyone thinking about getting a TRO should read the definition of “abuse” in Chapter 586, Hawaii Revised Statutes. What the other party does has to fit within this definition. Being disagreeable or snotty doesn’t cut it. Recently, one of my divorce clients complained that her spouse “threatened me on back taxes, to file bankruptcy and not pay for child support.” This isn’t abuse within the meaning of Chapter 586. If you file a petition and it gets denied, you are going to look very foolish. And it can adversely affect you in a child custody dispute.
If you have any hope of getting to an uncontested divorce, filing a TRO will certainly extinguish it. When your spouse is absolutely forbidden from any communication with you or the children, then it’s pretty unlikely that he or she will agree to a divorce proposal that we send. Be careful, by the way, because the opposing party can also file one against you. If you have children in common, and you both put your kids on your petitions, then we’ll have a situation where neither parent is allowed to have contact with the children pending a hearing. When that happens, your kids wind up in foster care.
No doubt there are times when a TRO is appropriate. Violence and threats of violence should result in two things: a police report and the filing of a TRO. Sometimes our client just doesn’t want to file one. I recall a client whose husband threatened her with a knife. She refused to get a TRO against him because she was afraid of what he would do in response. Some might think my advice to her was cavalier: I asked her if she’d rather be killed by him or spend the rest of her life in fear. After all, it’s her life and her choice. She got the TRO. After a couple of arrests for violating it, he decided to leave her alone.