Protective Orders in a Virginia Divorce: Emergency, Preliminary, and Final Orders

This topic is part of Adultery and Fault-Based Divorce.

In this article

1. Who Can Seek a Family Abuse Protective Order
2. The Three Orders
3. What a Protective Order Can Require
4. Firearms and Violations
5. Protective Orders and the Divorce Case
6. Preparing for the Hearing
7. Local Resources
8. Speak With an Attorney

If you are in immediate danger, call 911. The National Domestic Violence Hotline is available at 1-800-799-7233.

Family abuse during a separation changes the case. It can decide who stays in the home, who has the children in the weeks that follow, and how the court views each parent for the rest of the litigation. Virginia law provides three levels of protective order, each with its own standard and duration. I represent clients in Fairfax, Loudoun, and elsewhere in Northern Virginia on both sides of these petitions: those who need protection, and those who must respond to allegations made in the middle of a divorce or custody dispute.

I am Jason A. Weis, an attorney with Curran Moher Weis in Fairfax.

Who Can Seek a Family Abuse Protective Order

A family abuse protective order is available against a “family or household member,” a term that includes a spouse, whether or not the spouses live together; a person with whom one has a child in common; a person with whom one lives or has lived within the previous 12 months; and an intimate partner. “Family abuse” includes any act involving violence, force, or threat that results in bodily injury or places a person in reasonable apprehension of death, sexual assault, or bodily injury, as well as stalking, forceful detention, and the other conduct listed in the statute. Va. Code § 16.1-228. Petitions are filed in the juvenile and domestic relations district court. Va. Code § 16.1-241(M). Where the parties are not family or household members, separate protective orders are available under Title 19.2.

The Three Orders

Emergency protective order. A judge or magistrate may issue an emergency protective order on the request of a law-enforcement officer or the person alleging abuse, upon finding that a warrant for assault and battery against a family or household member has been or will be issued, or that there are reasonable grounds to believe family abuse occurred, and that there is probable danger of further abuse. The order expires at 11:59 p.m. on the third day after it is issued, extended to the next day the court is in session if that day falls when court is closed. An arrest is not required. Va. Code § 16.1-253.4.

Preliminary protective order. On a petition supported by an affidavit or sworn testimony, the court may issue a preliminary order ex parte, without the other party present, upon a showing of immediate and present danger of family abuse or evidence sufficient to establish probable cause that family abuse has recently occurred. The order takes effect on personal service and sets a full hearing, which must ordinarily be held within 15 days. Va. Code § 16.1-253.1.

Protective order after a full hearing. At the full hearing, the court may enter a protective order if the petitioner proves family abuse by a preponderance of the evidence. Va. Code § 16.1-253.1(E). The order may last up to two years, or up to four years where the respondent was subject to a prior protective order within the preceding ten years, and it may be extended on a timely motion. Va. Code § 16.1-279.1.

What a Protective Order Can Require

A protective order can do considerably more than prohibit contact. Among other things, the court may:

• prohibit further abuse and contact with the petitioner and other family or household members;
• grant the petitioner possession of the residence to the exclusion of the respondent, without affecting title;
• prohibit the termination of utilities, and grant exclusive use of a cell phone number or device;
• grant temporary possession of a vehicle and possession of a companion animal;
• order treatment or counseling; and
• in an order entered after a full hearing, provide for temporary custody or visitation of a minor child and temporary child support.

Va. Code §§ 16.1-253.1(A), 16.1-279.1(A), (A1). Those temporary provisions can shape the custody and support case that follows, which is why the hearing should be prepared as carefully as any other contested hearing.

Firearms and Violations

A person subject to a protective order may not purchase or transport a firearm while the order is in effect. A person subject to a protective order entered after a full hearing may not knowingly possess a firearm, must surrender, sell, or transfer any firearms within 24 hours of service, and must certify in writing within 48 hours that this has been done. Va. Code § 18.2-308.1:4. Violating a protective order is a criminal offense, with enhanced penalties for repeat violations and for violations involving a weapon or further violence. Va. Code § 16.1-253.2. For a respondent who holds a security clearance or works in law enforcement or the military, these consequences can reach well beyond the divorce.

Protective Orders and the Divorce Case

Once a divorce is pending, the circuit court has its own authority. On a showing of reasonable apprehension of physical harm by a family or household member, it may exclude that person from the jointly owned or jointly rented family dwelling. Va. Code § 20-103(B).

In custody, any history of family abuse is one of the factors the court must consider in deciding the child’s best interests. Va. Code § 20-124.3(9). At the same time, the issuance of an emergency protective order is not itself evidence of wrongdoing by the respondent. Va. Code § 16.1-253.4(G). What matters is the proof offered at a hearing. See custody and visitation in Fairfax and Loudoun.

Protective order petitions are sometimes filed to gain an advantage in a divorce or custody dispute, and judges weigh the evidence with that possibility in mind. A petition built on real events, documented carefully, is the strongest protection for a person who has been abused. A respondent facing allegations should treat the full hearing as a trial: the findings made there may follow both parties into the divorce.

Preparing for the Hearing

The evidence in these cases is usually close at hand and easily lost. Photographs of injuries or property damage, medical records, police reports, text messages, emails, voicemails, and the names of anyone who saw or heard what happened should be preserved immediately. A written timeline prepared while events are fresh is often the most useful document in the file. Each side should also expect to testify and to be cross-examined.

Local Resources

• Fairfax County: Juvenile and Domestic Relations District Court, protective orders and domestic and sexual violence services
• Loudoun County: emergency protective orders and domestic violence and sexual assault services
• National Domestic Violence Hotline: 1-800-799-7233, or text START to 88788

Speak With an Attorney

If you need a protective order, or are responding to one, in Fairfax, Loudoun, or elsewhere in Northern Virginia, call me at (571) 328-5020 or request a consultation.

This article provides general information about Virginia law and is not legal advice. Contacting me does not create an attorney-client relationship.

This article provides general information about Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. The application of the law depends on the specific facts of each case.