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Obtaining a Domestic Violence Injunction
Posted by: Adam Vorhis
June 17, 2010
Topic: Injunctions

When attempting to obtain a domestic violence injunction, it is important to understand how injunctions work and how to file for one correctly. This post specifically addresses domestic violence injunctions, which is one of the most common kinds of injunctions. Other injunctions include dating violence, sexual violence and repeat violence.

Before outlining the process for obtaining an injunction for protection against domestic violence, let's clear up a few misconceptions.

1.   one need not be a spouse to petition for a domestic violence injunction. Any "family or household member" may file.

2.   a person does not need to live with an abuser to file for an injunction. Even if one has left a house to avoid domestic violence, he or she can still file for the injunction.

3.   there are no court fees associated with filing a domestic violence injunction petition. In fact, the law specifically prohibits courts from assessing fees associated with such filings.

4.   one can file for an injunction even if the courthouse is closed. Many counties (including Alachua County) offer "Temporary Domestic Violence Injunctions" after hours and on weekends and holidays. The Alachua County Sheriff's Office has victim advocates on staff who can assist you. If you would like to request assistance in completing a petition, you may contact the Victim Advocate Unit at (352) 367-4193 or (352) 367-4193 or (352) 367-4155.

5.   filing for a domestic violence injunction will not prevent or hinder one from filing any other divorce proceedings.

What is domestic violence?

Florida law defines domestic violence as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." To help combat domestic violence, the statute provides that anyone who has been the victim of domestic violence within the last six months, or anyone who reasonably believes she is in imminent danger of becoming a victim of domestic violence, can petition for an "injunction for protection."

How does someone actually get an injunction to protect against domestic violence?

First, a petition (a formal written request for an injunction) must be filed in any jurisdiction in which either the petitioner (the person asking for the injunction) or the respondent (the person from whom the petitioner seeks protection) lives, or where the domestic violence occurred. In Gainesville, Alachua County, this can be done at the civil courthouse at 201 E. University Ave., Gainesville, Florida. Simply go the first floor of the courthouse to the Clerk's office. A deputy clerk can even assist you in filling out the petition.

After the petition is filed, the court holds a hearing to determine whether the petitioner is either the victim of domestic violence (as defined by Florida Statute) or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence (if the court determines an "immediate and present danger of domestic violence exists," it may grant a temporary injunction without a full hearing). To determine whether the belief of imminent danger is reasonable, the court will look at several factors, including (but not limited to) the history between the petitioner and respondent (including any prior violence or threats); whether the respondent has attempted to harm the petitioner; and whether the respondent has attempted to prevent petitioner from leaving the home or calling law enforcement.

If the court finds sufficient evidence that the petitioner is, or is in imminent danger of becoming, a victim of domestic violence, the court may issue an injunction that can:

   Restrain respondent from committing any acts of domestic violence.

   Award petitioner exclusive use and possession of any dwelling that the parties share, or exclude

the respondent from the petitioner's residence.

   Award petitioner with 100% of the time-sharing in a temporary parenting plan.

   Establish temporary support for a minor child, children or the petitioner.

   Order the respondent to treatment, intervention, or counseling services.

   Refer petitioner to a certified domestic violence center.

   Deny respondent's right to carry a gun or ammunition.

   Order any other relief as necessary, including directives to law enforcement.

Courts enforce domestic injunction violations as either civil or criminal contempt, and violators are also subject to criminal prosecution. If the respondent violates a valid injunction for protection against domestic violence, the petitioner has several options. First, she may call the police, who may arrest the violator. Second, she may call the Clerk of Court in the relevant county. The Clerk will then contact the State Attorney, who will determine whether to file criminal charges. If a court determines the respondent has willfully violated the injunction, it may also order the offender to attend a "batterer's intervention program," even if no criminal charges are filed.

You don't have to have an attorney to file for a domestic violence injunction, but it can help to have an experienced attorney to assist you with your petition and to represent your interest at a hearing. If you would like to speak to one of our attorneys about an injunction, please feel free to contact us.

Getting help with an Injunction

Further, if you need long-term representation for a divorce or other family law matter, or help filing any petitions for protection from domestic violence, please contact our office. Our lawyers include a former domestic violence prosecutor, and they are intimately familiar with the processes involved in securing protection for you and your loved ones. If you have any other questions, please give us a call us at 352.240.1973 or toll-free at 1.866.663.4902, to schedule a free initial consultation.

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How Does The Court Determine Alimony?
Posted by: Adam Vorhis
June 17, 2010
Topic: The Dreaded A Word- Alimony

There is no word more likely to bring contention and animosity to a divorce than Alimony. After issues relating to children, almost nothing can bring as much anger, animosity and argument to a divorce proceeding than one party seeking alimony from the other.

Inevitably, during one of our free initial consultations, a potential client will ask one or both of the following questions:

"Will I have to pay alimony?" and /or "Can I get alimony?"

Prior to a recent change in the law, the analysis for alimony, while simple (does one party have a need and does the other have the ability to pay), was not easy to apply. There were no clear guidelines on how long the marriage had to be to make one party eligible for alimony; how long the alimony would last, and how much alimony would be awarded.

Luckily, Florida divorce law will undergo a few changes beginning July 1, 2010, when a law governing alimony takes effect. Florida House Bill 907 clears up some ambiguities in Florida alimony law, and creates a number of standards to help determine appropriate of alimony awards. The new statute gives explicit standards for determining alimony awards. Additionally, while the current statute provides for only "rehabilitative" and "permanent" alimony, the new law adds "bridge the gap" and "durational" alimony.

Under the new law, courts will first determine whether alimony is appropriate, based on whether one party has a need for alimony, and the other party has the ability to pay it. This has always been the test for alimony. If the court determines alimony is appropriate, the next question is which type of alimony (or which combination of the various types) will best serve the needs of the receiving party.

According to the new law, "rehabilitative" alimony is designed to assist in "establishing the capacity for self-support" by helping a party either redevelop skills or acquire education or work experience. Rehabilitative alimony awards are contingent upon a specific plan for rehabilitation (e.g., finishing college). The other newly specified alimony is known as "bridge the gap" alimony, and is designed to help a party "make a transition from being married to being single." Such alimony is intended to aid with "identifiable short-term needs," and is statutorily limited to two years.

"Permanent" and "rehabilitative" alimony are provided for in the current statute, but the new statute outlines when each type is appropriate. For instance, "permanent alimony" may be awarded for marriages of "long duration," which are defined as marriages lasting longer than seventeen years. Marriages with a duration of between seven and seventeen years are designated "moderate-term" marriages, and those with durations of seven or fewer years are designated "short-term" marriages.

Permanent alimony is awarded for moderate-term marriages upon finding that, after weighing various factors, such awards are "appropriate." For short-term marriages, permanent alimony is awarded only upon the finding of "exceptional circumstances," which is left undefined in the law.

When permanent alimony is inappropriate, a court may award "durational alimony." Durational alimony is awarded primarily for marriages of short and medium durations, and is designed to provide "economic assistance for a set period of time."

Finally, the new law adds several factors to those a court uses when determining alimony. Among the new factors are "earning capacities, educational levels, vocational skills, and employability," the tax consequences to each party of an alimony award, and the "responsibilities each party will have with regard to any minor children they have in common."

As can be seen, the new law strives to give the courts some direction in awarding alimony, but the basic test is still the same. This is why it is vital to hire an experienced divorce attorney. At Silverman and Vorhis, our attorneys stay on top of the changes in the law and use our experience to strive to obtain the best possible result. We provide comprehensive legal services while always representing our clients' interests. If you're considering divorce in Florida, please contact us or give us a call us at 352.240.1973 or toll-free at 1.866.663.4902 for a free consultation.

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