California Law on Harassment While Filing for Divorce

By Heather Frances J.D.

Divorce can resolve struggles in a marriage, but the divorce process sometimes makes a situation worse before it gets better. When one spouse files for a divorce, the other may begin harassing the filing spouse with threats, constant phone calls or even violence. Under certain circumstances, California allows either spouse to obtain a restraining order to provide protection against the other spouse's harassing behavior.

Domestic Violence

California law protects victims of domestic violence, which includes abuse between couples who are divorced or separated. In addition to physically harming someone, domestic violence includes harassing, stalking, threatening, disturbing the peace or destroying someone's property. Thus, a threat by one spouse to hurt the other if she files for divorce could be considered domestic violence under California law. Since harassment between divorcing spouses generally qualifies as domestic violence, California's domestic violence restraining orders are available to help prevent the harassing behavior. Even in situations where harassment may not qualify as domestic violence, such as when the harassing spouse is targeting a friend or family member, restraining orders are available.

Restraining Orders

Restraining orders are issued by California courts with the goal of preventing abuse, and they function by ordering the abusing spouse to cease his harassing behavior, stay away from the victim or take other actions to bring peace to the situation. Once an order is in place, law enforcement officers can rely on it to regulate the spouses' conduct. Thus, if an abused spouse sees her spouse coming too close to her house, for example, she can call the police and they can come enforce the order's terms.

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Options for Restraining Orders

If the harassment qualifies as domestic violence, the abused spouse can get a domestic violence restraining order; otherwise, she can get a civil harassment restraining order. Either type of restraining order may include orders that regulate the abusing spouse's personal conduct, keep him away from the target of his harassment or kick him out of a home. For example, a restraining order may tell the abusing spouse to stop contacting the abused spouse, stalking her, threatening her or harassing her. It can also tell him to move out of the marital home and stay 100 yards away from his spouse, her place of work, her home and her vehicle. Orders can be customized to fit the harassment situation.

Getting a Restraining Order

To obtain a restraining order, the harassed spouse must file forms with the court detailing the abuse situation, cause for the restraining order and suggested terms for the order. This paperwork can be prepared by an attorney or the abused spouse, and California courts offer self-help clinics in many areas to help spouses file on their own. Once the paperwork is filed, a judge determines whether to grant a temporary restraining order, valid for up to three weeks, when the abused spouse has a hearing on the permanent restraining order. Temporary restraining orders are generally issued in a day or less, and the abusing spouse is not entitled to appear before the judge until the hearing.

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