How to Get a Restraining Order in South Carolina
Restraining orders are a crucial source of protection for people being harassed or abused by strangers or family members. Many men and women leaving abusive marriages seek a restraining order against their spouse. These judicial orders require the person restrained to stop doing certain things. Some orders will also require affirmative acts from the person restrained. Please contact Surasky Law Firm today if you have a question about your divorce. We can file the paperwork on your behalf or answer any questions you have.
Order of Protection vs. Restraining Order
Many people use “restraining order” to refer generally to all judicial injunctions. But South Carolina recognizes different types of restraining orders. The two most popular are Orders of Protection and Restraining Orders.
An Order of Protection is issued against a household member, like your spouse. A family court judge issues an Order of Protection, and you can seek one as part of a divorce or independent of the divorce process.
If you are seeking to restrain a non-family member who is harassing you, then you can seek a Restraining Order from a Magistrate judge.
How to Get an Order of Protection
As experienced divorce lawyers, most of our clients are seeking an Order of Protection against someone in the home. You can seek an Order of Protection against a member of your household, which is a broad category defined at S.C. Code § 20-4-20 to include:
Someone you had a child with
A romantic partner you are currently living with
A romantic partner you used to live with
For example, you might seek an Order of Protection against your ex-girlfriend who you lived with. Even though you aren’t living together right now, you used to, and that’s enough to qualify.
You should go to the family court in the county where the abuse occurred or where you last lived together. However, you could also go to the family court in a different county if you or your abuser currently lives there.
A lawyer can request an Order of Protection for you. Alternatively, you can go to the courthouse's Family Court Clerk of Court. There should be forms you can fill out in the office; ask the clerk for them. You do not have to pay a filing fee.
Once filed, the court schedules a hearing. If there is an emergency, a hearing can be held in as little as 24 hours. You have the burden of proving by a preponderance of evidence that the household member committed one of the following:
Physical harm, threat of physical harm, or assault; or
Sexual criminal offenses against a family or household member
An attorney is a big help at finding relevant evidence. Although your testimony is certainly valid, you should supplement it where possible with police reports, other witness testimony, and medical records.
What Does the Order of Protection Prevent?
This Order will instruct your abuser to:
Stop any abuse or threats of abuse
Refrain from contacting you or your family
Stay away from your home and place of work
Move out of the family home (possibly)
Not transfer property or other assets
The Order can also set up a child custody schedule along with support payments. This Order is good for up to one year.
Violations of an Order of Protection
An order of protection is not a suggestion to your abuser to stop contacting or harassing you. Instead, it is a judicial order backed up by the power of the family law court. If your abuser violates the order, the police can immediately arrest him or her. A judge can also find the abuser in contempt and either issue a fine or send them to jail.
Remember to call the police if you believe the abuser is violating the order in any way. Let the judge decide whether a violation was accidental or not.
How to Get a Restraining Order
This is the second most popular restraining order. Many people seek one when they can’t get an Order of Protection. There are two reasons to seek a Restraining Order: harassment or stalking.
Typically, harassment involves at least two instances of someone causing fear or distress by contacting them without permission, such as sending unwanted social media direct messages, text messages, or phone calls. Other harassing conduct includes following you, damaging your property, or hanging around your home or work.
Stalking is more serious. It causes the person targeted to reasonably believe they or a family member will be killed or hurt or their property will be damaged.
You can go to the Magistrate Court and ask the Clerk of Court for forms. Go to the county courthouse where the harasser lives or the county where the harassment/stalking took place.
A lawyer who specializes in this can fill out the forms and provide supporting documentation, such as police reports showing instances of harassment or stalking. There should be no filing fee.
The court will schedule a hearing after you file. You have the burden of proving harassment or stalking. In some situations, you might receive an emergency Restraining Order that is only temporary. It is good until your hearing date.
A Restraining Order is similar to an Order of Protection and should:
Demand that the abuser stop harassing or threatening you or your family members.
Prohibit all contact.
Prevent the abuser from going near your home, workplace, or school.
This order is good for a year, but a judge might extend it, depending on the situation.
Violations of Restraining Orders
What happens if your stalker flouts the order? You can call the police, and they will arrest him or her. Any violation can result in a maximum of 30 days in jail and/or a $500 fine. They can also face criminal charges for harassment or stalking.
We Can Help in Your Divorce
No one should suffer violence, threats, or harassment. South Carolina allows victims to seek Orders of Protection or Restraining Orders against their abusers. Please contact our law firm if you need assistance seeking help against an abusive spouse.