We all have read and seen pictures of what appears to be injuries to Johnny Depp’s spouse, Amber Heard. A petition for dissolution has been filed by Ms. Heard to terminate her marriage to Mr. Depp and appears to be requesting also financial issues, including but not limited to, spousal support and asset division. She also filed a request for a restraining order based on her alleged fear and prior physical and mental violence caused by Mr. Depp.
Although many attorneys use the “guideline” dissomaster computer program to calculate temporary spousal support, the dissomaster computation is merely a starting point. The court is required by law to consider all factors set forth in California Family Code (FC) 4320.
FC 4320(i) states in full that “documented evident of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party, and consideration of any history of violence against the supporting party by the supported party.”
FC 4320(m) states in full that “the criminal conviction of an abusive spouse and the elimination of the award in accordance with FC section 4325.”
FC 4320(n): states in full that the court can consider, “any other factors the court determines are just and equitable.”
There is no open and current criminal case against Mr. Depp. But as we see in the tabloids and media outlets, Ms. Heard’s attorney or representatives are “putting” out there photos of her bruises, broken glasses at the scene, etc. and the Los Angeles City and County prosecutors may take a second or even a first “look” into this case. Note, however, that even though Ms. Heard did call the police at one of the incidents, the police indicated there was “no crime” and never pursued any domestic violence arrest of Mr. Depp.
Why are these allegations of domestic violence—both physical and emotional acts surfacing? As already stated above, the court is required to review all filed or non-filed acts of domestic violence, including emotional impact on the supported spouse.
She was granted a temporary restraining order and a permanent order hearing should have been scheduled. It is at this time that the court will decide whether a restraining order, usually lasting 3 years will be instituted.
Disproving domestic violence is not easy and fighting a protective order or a restraining order against you requires a skilled trial attorney. The standard of proof in the civil case (family law) is preponderance of evidence and the criminal case is beyond a reasonable doubt.
The orders are the same in both the family and criminal courts. The terms of staying away from the
Many clients have asked what type of circumstances one is allowed to get a court ordered protective order (“PO”) or restraining order (“RO”). A lawyer must convince the judge that the other party whom you are trying to get an order for has (1) hurt you; (2) made you feel afraid; (3) tried to get you to not testify; or (4) threatened to do any of these things. If your family is at-risk, an order may be broadened to include all individuals that you can prove are also in fear.
The judge will inquire as to the details of the allegations and whether there is a need to protect you. I tell my clients to gather documentary evidence of abuse, retaliation or any threats. I like to provide to the judge concrete incidents and not abstract or hypothetical instances. Thus, it is best to record “nasty or threatening” messages, take photographs of acts of vandalism, or keep emails or any written communications which are “dangerous” in tone. I have also subpoenaed police officers to affirm/disaffirm reports of violence. This is especially helpful since there is a high level of trustworthiness to their testimony.
The procedural requirements of filing this motion are best handled by an experienced attorney. Certain documents must be completed and filed with your local Clerk’s Office. I will request an experienced process server or even the local Sheriff’s Department to serve the opposing party. It is crucial to serve appropriately all necessary parties. The first thing the judge is going to require is proof of proper service.
If the opposing party is present, a hearing before the judge will take place allowing both sides to examine the parties and witnesses. As a result, an attorney who is experienced in questioning witnesses is a must. In addition to strong documentary evidence, I also like to bring forward supporting witnesses. It is crucial, if available, to bring in percipient witnesses to any threats or violence that has occurred between my client and the opposition.
I also protect my clients in both the criminal and civil arena, if applicable, by obtaining both orders in these two arenas. I have had clients on both sides. If you are served with documents advising you that someone is seeking to place a PO or RO or both against you, hire an experienced attorney. Your rights to be heard must not be trumped. This is especially true in scenarios involving child visitation or any other personal relationship (ie. co-workers, neighbors). Keep in mind, if you disobey the order, you can be arrested and criminal proceedings may be initiated.
Whether you are the one seeking the order or the one fighting the order, hiring an effective attorney is critical to insuring that your rights are not infringed upon. These orders are taken very seriously by both the court system and the law enforcement agencies. Consequently, filing or responding to them must be done diligently.