Tuesday, April 26, 2011

How do I get protection from an abusive spouse?

In Massachusetts, there are three statutes which can provide protection from an abusive spouse.

As a preliminary warning, none of these statutes, nor any other piece of paper, can physically prevent someone from harming you. These laws only provide for extra penalties and orders to discourage such behavior. If you are in fear of being harmed, and don't think that anything will stop your abuser then you should call a Domestic Violence Program for help.

Despite the limitations of these orders, they can still be useful tools in discouraging, preventing and punishing abusive behavior. The three statutes that can be used by victims of abuse to obtain protection from an abusive spouse are:

1. M.G.L. c. 208, § 34B - Order to Vacate Marital Home

Authority: The Probate & Family Court may order a husband or wife to vacate the marital home as part of a divorce or separate support proceeding.

Standard: The Court may order the offending spouse to vacate "if the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order."

Time limitations: The Order to Vacate shall not exceed ninety days, but can be extended for an additional "certain period of time, as the court deems necessary or appropriate."

2. M.G.L. c. 209A - Abuse Prevention

Authority: If the Trial Court (usually the District or Probate & Family Court) finds abuse they shall order a family or household member to:

(a) refrain from abusing the plaintiff;
(b) refrain from contacting the plaintiff; and
(c) vacate and stay away from the household, multiple family dwelling, and workplace.

The Court can also award the plaintiff temporary custody of any minor children and provide for visitation or child support.

Standard: A family or household member includes persons who:

(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.

“Abuse” is defined as "the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."

Time limitations: "Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order."

3. M.G.L. c. 208, § 18 - Pendency of action for divorce; protection of personal liberty of spouse; restraint orders authorized

Authority: In a divorce action, the Probate & Family Court may prohibit the husband or wife from placing any restraint on the personal liberty of the other.

Standard: The Court may "make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."

Time limitations: Under Champagne v. Champagne, 429 Mass. 324 (1999), these orders may be permanent, until further order of the Court.

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