Filing for Default and dealing with restraining orders

#1

Hi Cristin, Thanks for all your help I couldn’t have gone so far without your helpful videos.

I have filed for divorce with minor children and the sheriff served all paperwork along with the blank response fl120.

However instead of responding she filed for restraining order and the hearing is May 28, one day before the 30 day period to file for default.
She’s asking for full child custody (legal&physical), child support and spousal support in the dv100. I’m not sure what to do on the 31 first day, should I still file for default and will I be still able to request for joint custody as requested in the petition, what forms do you recommend in my case?

I’m low-income and I’ve been married for 12 years.

Thanks for all you do, I I really wish you the best

#2

First, I’m so sorry that your wife reacted in such a negative way, and I hope you’re hanging in there. The most important thing for you to deal with right now is the restraining order request. That request, if granted, adversely affects custody (and likely visitation) and spousal support, at a minimum. Your sole focus should be on defending the restraining order.

Restraining orders are unique, in that they DO relate to the divorce. Orders issued in the restraining order matter blend with the divorce, and often times the cases are “associated” or “consolidated,” meaning that they are officially linked in the Court’s view. The divorce is not a way to change the restraining orders (if any are issued). Your mindset should see that these two types of cases are identical for your situation (while there are certainly important legal distinctions between the cases, in the real world, you shouldn’t feel they are different at this point in time). One affects the other, and while they’re equally important, the restraining order is the time sensitive emergency right now.

You should expect that the restraining order will deal with custody and support. Any orders issued will be upheld in the divorce action.

To specifically answer your question, there is nothing legally preventing you from taking her default; however, do understand that it’s not really something that is practical in your situation until the restraining order first gets dismissed/resolved.

#3

Thanks for your reply, it really means a lot to me.

Today I attended the hearing and I contested it, trial is set to end of July. She got custody of kids and I can see them on weekends, child/spousal support will be determined by end of July.

Can I still benefit from filing for default divorce, at least to avoid spousal support?

May 31, 09 is 31 days since service.

I really appreciate your help.

#4

No, filing for a default will NOT prevent your spouse from seeking spousal support. The issue is already before the court in July through your restraining order.

#5

My fiance’s ex wife is a real bad apple. And I swear to you I am not the type of woman to be petty but this woman has literally ruined our lives. It is a terrible, heartbreaking story for our 4 boys, he has 3 with her and I have 1 with my abusive ex husband. However, I will keep this question to the topic of this thread.This woman was able to get a DVRO granted because my fiance (yes in terribly poor taste) joked that if he lost the custody hearing that was going on that day, as well as a settlement conference for the remaining assets being held in trust which were his inheritance from his father, and then realized he had been screwed out of his inheritence, he “might just shoot her”. Yes it was a terrible thing to say but it was not meant literally at all. However, a court officer overheard him say this and then had to report it and when she testified in the court, his ex-wife’s lawyer (without any visible signs of her being upset) said her client was upset and they needed a recess for her to regain her composure. It was so obviously fake. I am a true domestic violence survivor and this woman was the abuser not the victim in their marriage. This woman has actually conspied with my abusive ex husband feeding him information despite my no contact order, which has resulted in me being choke slammed in front of my toddler at the time. No abuse victim would EVER sell out another victim to their abuser. However, this evil woman was able to get a DVRO against my fiance for a childish remark. Now she only uses this order when it suits her purposes. She has called the police because he dropped of new clothes that his eldest son wanted for his first day of high school and for us attending a baseball tournament (the order allows for attendance at the kids’ activities)trying to stop us from staying in the same hotel, two floors above her, where the entire team was staying.We ended up getting upgraded to a much nicer area of the resort instead. Small wins However, she also invites my fiance to her house to “talk” but he has to go aloneor to doctor’s appts for the kids but again he must be alone. He tells her he is not comfortable being alone with her and if she wants to talk then they can meet at his lawyer’s office and trade off going to dr’s apps. Her response is to not tell him when the kids have appts anymore. She sends multiple messages daily via their co-parenting app. These messages are not needed and are only her excuse to engage with him. She uses this order like its open to interpretation too. One day she said that he may only address the children at extracurricular activities if he at least acknowledges her first and stays close enough to her that she may be included in the conversation. When he reminded her that his contact with the children had nothing to do with the order but it did require he stay a certain distance from her, she was livid and said that he must stay away from her at all events and that meant not engaging the kids if it was her custodial time. Again not part of the order. Is there anyway to get this order vacated and show that she is only using it to try to force interaction, not for protection? She is literally wasting law enforcements time and making it that much harder for actual victims to be taken seriously. She is a disgrace to women and an insult to DV victims everywhere. What can he do to stop her from using this as yet another way to control his access to his kids and insert herself in his life?

#6

Legally, yes, under certain circumstances, it is technically possible to “vacate” a restraining order; however, it is virtually impossible to do so.

The smarter option is to work on re-establishing (or establishing) joint legal custody so that she no longer has the “power” over him, and possibly clarifying the orders regarding visitation and contact with the children. If he has joint legal custody, then he needs to start being more proactive. For example, he doesn’t need her to inform him of doctor appointments. He just needs to proactively contact the doctor and have the doctor send notifications of appointments.

In general, the focus needs to be less on “stopping her,” and more of empowering himself on doing the things he can do.

#7

I filed for divorce had him served 6/10/20. Documents served FL-100, 110, 120,140,142,150,155, and then 141(preliminary with court). he is in jail for DV and I have a criminal protective order. He has not responded. I’m in the process of filling out the FL-165 on question 2 can I check the box that indicates is not attached for the FL-150 & 160? I never served him with I did the 142 instead. There hasn’t been any changes & petition there is no request for alimony, assets, division of property, no children involved, or attorney fees.

#8

The judge usually likes to see FL-160 with a default without agreement case, since that provides an outline of the assets and debts. If you’ve already filed your FL-150, then you should not need to attach another one to your FL-165.

#9

Thanks so much for your response. I served him the preliminary FL-150 but I did not file one with the court. Do I need to file the 150 with the court as well?

#10

Typically yes. There is a small exception if the case proceeds as uncontested, meaning you never go to court regarding financial issues and both sides fully participate with all the filings and the final agreement.