Orders of Protection Used Inappropriately

Divorce lawyer in Nassau County and Suffolk County, Long Island, Bryan L. Salamone

As a divorce law firm, Bryan L. Salamone & Associates, P.C. has handled thousands of cases involving orders of protection. It is their experience that orders of protection can be necessary, and can preserve property and help maintain safety. Nevertheless, there are countless incidents over the years were we have encountered false orders of protection or otherwise orders of protection have been used only to gain strategic ground in a divorce battle.

Many clients come to the firm and ask, "When will my spouse be asked to leave the home?" The answer to this is usually, "When the divorce is over." The average divorce in the state of New York, if extremely simple, is between three and five months. A contested or high-conflict divorce can go between 11 and 17 months. Less experienced firms or firms with smaller staff (Bryan L. Salamone & Associates, P.C. has more dedicated associates than any other Nassau and Suffolk County firm which concentrates entirely on matrimonial and family law) can prolong a divorce for years. Indeed, it is the less experienced firms and firms with smaller staffs that often have divorces on their shelves for 3-4 years at a time. This is extremely difficult for the litigants as they must live with each other.

How does one spouse get the other out of the house during the course of a divorce? Usually that is what a request for exclusive use and occupancy is. In the Supreme Court, the request for exclusive use and occupancy 95 percent of the time falls on deaf ears. Unless there is an imminent threat to the safety and well-being of the children, or there are extenuating circumstances, a hearing regarding the exclusive use and occupancy of the marital residence is not held. Therefore, the most requests are denied immediately. In the event that a hearing is scheduled, these hearings can be scheduled months after a request is made and a decision can be rendered as long as fifty to sixty days after a hearing has been held. Therefore, a Supreme Court request by a litigant for the exclusive use and occupancy of a home could last 4-5 months. This is an untenable situation for people undergoing a divorce.

What some people have the right to do is obtain orders of protection giving them the right to remain in the house during the divorce by making an application in Family Court. For example, if a wife states to a Family Court Judge that she is in danger, that a family offense has occurred, or that the children are in danger, the Judge may immediately (without a hearing) issue an order of protection which states that the husband may not return to the marital residence. The order of protection will be a "stay away" order of protection and the husband will be told to "stay away" from the home, business and/or school of the wife and children. This is an extreme case. It happens with great frequency within Nassau and Queens. When Judges are faced with petition alleging imminent harm to the children or a spouse together with an incidence of violence and corroborating evidence, they are not hesitant to immediately sign an order of protection directing the offending spouse to remain away from the home without a hearing.

In the above cases the offending spouse is asked not to return to the marital residence and to "stay away" from the complaining spouse and children. There will be a hearing held usually within a week or so. The hearing can be adjourned for weeks and the spouse to have allegedly been violent may be forced to remain out of the home for a month or more without even a hearing. This is incredible. At the hearing, it often results in a he said she said scenario whereby one spouse alleges that the other spouse threatened grave harm or committed a family offense. A family offense can include: disorderly conduct, harassment, stalking, criminal mischief, assault and menacing. A family offense is usually between persons who are married, parents and children, people related through blood or marriage, people who have a child in common, or even people who just have an intimate relationship with one another (this can even mean boyfriend/girlfriend relationships). When a temporary order of protection is granted by the Judge, this could prevent the respondent from going anywhere near the complaining person´s home, school, place of employment or any other specified location the Judge deems necessary.

At the firm of Bryan L. Salamone & Associates, P.C., we understand that the only thing that can get an offending spouse back into the home after they have become the subject of a stay away order of protection is a good attorney. In a he said she said scenario the only thing that can be persuasive to the Judge would be corroborating evidence. This is often not available. Unless there are medical reports and/or witnesses (other than children), it will simply be one spouse's word against the others. Therefore, it is the talent and experience of the attorneys that will get the husband or wife back into the home where they belong. No one should be forced out of their home by old or unsupported allegations and the firm of Bryan L. Salamone & Associates, P.C. can propose your point of view and your side of the story better than anyone else because we have the experience to do so. We know how to present the facts in an order and in a manner most persuasive to the Judge.

Losing at the level of a Family Court order of protection will mean, most likely, a complete destruction of the family's finances, the uprooting of either the father or mother away from the children and possibly the loss of the entire divorce. It is important, if not imperative, that a person who has been thrown out of their house by a stay away order of protection hires the most aggressive and experienced attorneys. They should hire Bryan L. Salamone & Associates, P.C. immediately. Do not try and defend an order of protection with anyone who has done less than a few thousand of these cases, do not settle for law firms that have a small staff and do not maintain a large presence in Suffolk, Nassau and Queens, and do not settle at all. Contact Bryan L. Salamone & Associates, P.C. We welcome the challenge and we welcome the opportunity to defend any order of protection. Bryan L. Salamone & Associates, P.C. is available for free consultations and maintain evening hours for the convenience of our clients. Our hourly rates are as low as $345.00 an hour and there are no additional or escalated fees for court time. Bryan L. Salamone & Associates, P.C. is located in Melville, New York and can be contacted at 1.631.479.3839.