I do not want to get the divorce papers served without a restraining order or an idea of when he will leave. Should a sheriff serve it? My attorney will not answer my questions. Anyone out there willing to help in San Antonio?
Divorce / Separation Lawyer
Normally, a standard temporary restraining order (TRO) can be obtained immediately at the time of filing, and served on your husband along with the divorce petition. This TRO is obtained "ex parte" from the judge without a hearing, and contains about 20 items that your husband is prohibited from doing, such as removing you from health, life, or auto insurance; harassing you or committing family violence, stalking you, removing you from the home, removing or encumbering property, withdrawing money from bank accounts (except for living expenses or attorney's fees), canceling utilities, or entering or controlling a car you have possession of.
Because the TRO is obtained without a hearing, it is valid for only 2 weeks, to allow time for you to schedule a court hearing. The TRO normally will NOT have the immediate effect of removing your husband from the marital home, but you can ask for "exclusive use and possession" of the marital home when you have the hearing on temporary orders, at which time the court will decide who stays in the home while the divorce is pending, and the other party must vacate the home.
The one exception to the rule that a party cannot be excluded from the home immediately without a hearing is if there has been domestic violence (or threats of domestic violence) committed within the 30 days immediately prior to filing. If that is the case, your lawyer can prepare a "temporary ex parte protective order" seeking immediate removal of your husband from the home, and have you sign a sworn affidavit describing the violence or threats that occurred within the last 30 days. You would accompany your lawyer to swear under oath before a judge about exactly what occurred.
If the judge grants the temporary ex parte protective, a law enforcement officer may be ordered to accompany you to the home, serve your husband, and stand by while your husband immediately gathers his clothes and personal effects and vacates the home. A hearing on the protective order would be scheduled within 20 days, at which time your husband would have his day in court to contest the protective order, and after hearing evidence, the judge would decide whether to grant a permanent protective order.
Absent evidence of family violence, your husband cannot be forced out of the home until a hearing his held in court.
You should discuss your options with your attorney. If you are not satisfied with your attorney's representation or advice, you have the absolute right to seek new representation.
Please feel contact me if you have any questions.
Marc A. Pederson
Family Law Attorney
As Mr. Pederson stated, a standard TRO can be obtained when filing the divorce petition. To obtain what is commonly called a "kick-out order" the court must find that 1) you are currently living in the home and have been for the last 30 days, 2) your spouse has committed family violence within the last 30 days and 3) there is clear and present danger that your spouse will commit family violence against someone in the household. You can ask for law enforcement assistance. You must file a sworn affidavit as to the facts and circumstances of the family violence that are very particluar as to the time frame and acts, showing you have lived at the residence for the last 30 days and that there is a clear and present danger of family violence. You should also appear at court when the "kick-out order" is being asked for. from the court. Within 14 days, a hearing shall occur to determine wheter the order should continue.
If you do not think you will qualify for this, a standard TRO can be helpful and serving by a sheriff my help. You also have the hearing within 14 days to decide who stays in the home.
With kindest regards,