Restraining order vs. protective order: Key differences explained

Key Takeaways:

• Laws differ from state to state, but in multiple jurisdictions, protective orders apply to stalking, violence and harassment that occurs between individuals who knew each other before the issue, while many restraining orders apply to a larger range of interpersonal conflicts and are available regardless of whether the parties knew each other before.
• You may be able to get a protective or restraining order without notifying the respondent, but those orders are typically temporary and may only last for up to a month.
• Respondents who violate protective or restraining orders may be subject to financial penalties or incarceration.

If someone threatens your safety, property or livelihood, you may be able to fight back through a restraining order or a protective order. These court orders are vital tools for ensuring your well-being and stopping harassment or mistreatment from threatening individuals. 

It’s essential, though, to understand the differences between a restraining order vs. an order of protection before you start to file for anything. That way you will be better prepared for court, which may improve your chances of obtaining one of these legal safeguards more quickly.

In short, while the names for these types of orders are often used interchangeably, their legal applications, processes and enforcement may differ depending on what state you live in. The main difference between restraining orders and protective orders in many states is the following:

• Protective orders often apply to stalking, violence or harassment cases where the victim had a previous relationship with the offending party.
• Restraining orders may apply to a broader range of behavior, and the victim doesn’t have to know the offending party.

To get an idea of what you may face when seeking court protection against a threatening party, take a look below. Protective order and restraining order laws may vary from state to state, but this article provides a brief overview of what you may encounter when seeking one of these orders in court.

What is a restraining order, and when is it used?

A restraining order is a court-issued instruction designed to prevent an individual (the respondent) from engaging in behaviors that may harm another person (the petitioner). Depending on the jurisdiction, a court may award a restraining order to someone at risk of suffering financial, emotional or physical harm. An entity, such as the government, may also be able to obtain a restraining order against a respondent whose actions could hurt members of the public. 

An order from the court may restrain an individual from doing the following:

• Speaking with the petitioner in any way
• Following or stalking the petitioner
• Selling, transferring or taking loans out on their own property before a divorce is final
• Living in a certain residence
• Harassing the petitioner
• Owning firearms
• Violating certain laws
• Handling the petitioner’s property
• Making physical contact with the petitioner

Unlike protective order cases, with a restraining order, the nature of the relationship between the respondent and the petitioner may not matter. Of course, this depends on the jurisdiction.

After an order is in place, the respondent must follow all of the directions from the court. If a respondent violates the court order, the petitioner may contact the court or the police for enforcement. Violation of a restraining order may result in the respondent being held in contempt of court, which may include fines or jail time.

What is a protective order, and how does it work?

In many jurisdictions, protective orders are legal protection used in family law matters or when a romantic connection goes awry. Protective orders are typically filed by petitioners who have specific relationships with the respondents, such as romantic partners or family members. By issuing a protective order, the court may prevent injuries to or losses of a petitioner while they’re working to resolve other family law issues (such as divorce, custody or child support). 

In a protective order, the court may require that a respondent do some combination of the following:

• Stop communicating with the petitioner
• Stop harassing the petitioner
• Stop threatening the petitioner
• Refrain from following or stalking the petitioner
• Keep their distance from the petitioner
• Have no physical contact with the petitioner
• Move out of the petitioner’s home
• Provide housing for the petitioner
• Allow the petitioner to retrieve their personal belongings
• Surrender or refrain from obtaining firearms
• Provide financial support for the petitioner or the children they share
• Give the petitioner custody of the children they share
• Receive therapy for their behavior

If a respondent fails to comply with a protective order, they could face fines or jail time for contempt of court. 

A non-compliant respondent could also be criminally prosecuted for their violation. For instance, someone who willfully violates an injunction (order) for protection against domestic violence in Florida commits a misdemeanor. And if a petitioner who reports a respondent’s violation alleges in an affidavit that the petitioner committed a crime with their violation, the court must forward the affidavit to law enforcement. Florida law enforcement officers who receive affidavits alleging crimes must investigate the matters and forward reports to the state attorney so that they can decide if they will file criminal charges.

Many petitioners first receive ex parte protective orders, which are typically orders that courts grant without a hearing or reply from the respondent. Ex parte orders can last about two weeks to a month. If a petitioner receives a permanent protective order after a hearing, they may receive protection for multiple years.

How to get a protective order

Obtaining a protective order is a multi-step process that may lead to temporary and permanent relief from the threats you’re facing. Let’s look at what these steps may include.

File an emergency request

Depending on where you are, you may visit your local courthouse or the court website to obtain emergency protection order paperwork. The emergency request paperwork may require you to provide information such as the following:

• Your address
• The respondent’s address
• The respondent’s background information
• The respondent’s employer
• A description of the respondent’s behavior and why it’s an immediate threat
• A sworn statement that the claims in your petition are true

Typically, filing this request comes with a fee. 

After you file your emergency request, you may receive a temporary order from the court without giving prior notice to the respondent or going to trial over the matter. This order typically lasts for only a few weeks until the court can hold a hearing to determine whether a permanent order is warranted.

Serve papers to respondent

There are two types of service you may have to complete in a protective order case: service of notice about your petition and service of the court’s protective order.

If your state’s law requires you to give the respondent prior notice about your petition, you may have to have them personally served. In many cases, petitioners have the sheriff deliver their paperwork to the respondent to complete this requirement. You may need to pay a fee for this. However, a petitioner may receive court permission to serve the respondent by mailing the paperwork or publishing it in a local newspaper, which could cost less.

Serving the respondent with a copy of the court’s order is important for helping ensure that they follow the order’s terms. It may also help you obtain remedies (such as fines and incarceration) to enforce the order by showing the respondent knew the order’s terms and violated them. The respondent may be served by the sheriff, in open court after the hearing or by mail, depending on your state’s laws.

Document all threatening evidence

Many courts hearing protection order matters seek to understand whether the respondent poses an immediate threat to your safety. In order to build your case, you want to compile all available evidence of the respondent’s threats and harmful behavior before and after you file a petition for an emergency order. This evidence could include:

• Photographs
• Healthcare records
• Police reports
• Witness testimony
• Records of weapon ownership
• Receipts or invoices that support claims of property damage
• Correspondence
• Recordings

The more records you can present to a judge, the stronger your case may be, because showing repeated threats may convince the court that the respondent is consistently dangerous. If you don’t have access to the respondent’s records, you may be able to use legal tools like subpoenas to obtain the right to review their documents. Additionally, you can testify about issues you have personal knowledge of, like their gun ownership. 

Attend court protection hearing

To obtain a protective order that lasts more than a few weeks, you may have to attend a hearing with the respondent. During the hearing, you’ll need to present evidence and arguments about how the respondent threatens your safety. Then the respondent will have the opportunity to refute your arguments. 

During the hearing process, many petitioners hire attorneys because the issues (and opponents) they face may be scary and emotionally charged. A petitioner’s attorney can speak on their behalf while the petitioner takes steps to make sure they feel safe in the respondent’s presence.

Follow the safety plan strictly

In general, a protective order is only as effective as you make it. This means that you want to follow all safety measures outlined in your protective order and immediately document violations and contact law enforcement or a judge. Consistent monitoring and enforcement of your order may prevent further harm.

How to obtain a restraining order

The process for how to file for a restraining order has many similarities to getting a protective order. However, the process may be more open, depending on your location or circumstances. You may not have to prove violence or an existing relationship with the respondent to receive an order from the court. 

Contact local police first

Restraining orders in many states are connected to specific criminal activity of a respondent, such as:

• Stalking
• Assault
• Elder abuse

So, a first step to receiving a restraining order may include filing a report with local law enforcement at the first sign of threatening behavior. This creates an official record of the respondent’s actions and may strengthen your subsequent restraining order petition.

Submit court order petition

A restraining order petitioner typically must file a petition with their local courts outlining the type of threat the respondent poses. The petition may require background information about the petitioner and the respondent and sworn statements about the actions the respondent took to create an imminent threat of harm. Depending on the type of restraining order, you may also have to pay a fee.

Complete legal service process

Once a court issues a restraining order, the respondent must be served with it. A law enforcement officer often does this by personally delivering the order. Unless the court decides that personal service before granting a temporary restraining order isn’t necessary, you may have to have the respondent served with notice of your petition and give them a chance to respond to your claims.

Present evidence of misconduct

A court making decisions on a restraining order needs to see evidence that the respondent will likely cause the petitioner harm if the court doesn’t grant the restraining order. That evidence may include:

• Police reports
• Recordings
• Witness testimony
• Financial records
• Pictures
• Property records
• Correspondence
• Conviction records

You may have to present some of this evidence in a statement attached to your petition, and you may have to present other evidence to the court during a hearing. 

Many people who file for a restraining order seek the help of an experienced attorney. They can help you gather and present the evidence that supports your request. And if the emotional turmoil of the process is too much, an attorney may also speak to the respondent and the court for you.

Attend restraining order hearing

To get a long-term restraining order, you may have to attend a hearing to receive an order from a court that requires the respondent to stop their harmful activities. At your hearing, you will have an opportunity to present your proof of the respondent’s harmfulness.

Renewal of restraining and protective orders: What you need to know

Restraining and protective orders may expire pretty quickly. But both restraining and protective orders may be renewed if the threat persists. When it comes to a restraining order vs. an order of protection, the renewal process is often similar.

File before order expires

The renewal (or extension) process may involve filing another petition with the court. To avoid gaps in protection, you may want to file for an extension before your current order expires. You may also have to notify the respondent of your request and of any hearing that you and the respondent must attend. 

Prove continued safety threat

Depending on your state’s law, when you ask for a renewal, you may have to present new evidence to show that the respondent has continued to engage in harmful activities against you. The evidence may include proof that the respondent violated the initial order or that they committed a criminal act against you. 

Submit new required evidence

The new evidence that you submit may be similar to the evidence you presented when you received your initial order. This may include:

• Police reports
• Financial documents
• Correspondence from the respondent
• Conviction records
• Photographs
• Recordings

Attend court renewal hearing

You’ll likely have to attend a hearing to prove that you’re still in harm’s way because of the respondent’s actions. You can use the same type of evidence you used in your previous request to support your case. 

Complete extension request forms

To request that the court add time to your protection or restraining order, you’ll probably have to file more documents with the court. On this paperwork, you may have to state how long you want the protection order to last and why you’re requesting the renewal.

What happens if someone violates a restraining or protective order?

Violating either a protective or restraining order is a serious offense with potential consequences, including:

• Arrest
• Criminal fines
• Jail time
• Civil fines

Duration of restraining and protective orders

Temporary restraining and protective orders typically last for several weeks or several months. But permanent orders can last for several years or even a lifetime in some situations.

Bottom line

Restraining orders and protective orders provide vital legal protections, but they have key differences. The main ones are whether you need to have a relationship with the offender and what types of acts the orders protect against.

• In many states, someone seeking a protective order must prove they had a romantic relationship or familial connection with the respondent. 
• On the other hand, someone seeking a restraining order doesn’t have to have any prior connection with the respondent in many jurisdictions.
• Many protective orders apply to cases of violence and harassment.
• And restraining orders may cover a broader range of misconduct committed by the respondent.

While you may seek either order on your own, many petitioners find attorney assistance comforting. An attorney may help you identify which order may apply to your case. They can also handle the emotional burden of telling your story to the judge while you heal from the respondent’s threats.

Sources

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