February 23 2012

Divorce Court’s Dirty Little Secret

Anna Rittgers

Meet Mark Byron.  He married Elizabeth Byron and they had a child together.  Their relationship turned sour, and subsequently they began divorce proceedings.  She sought a protective order against Mark, and “accused him of verbally abusing her, threatening her with his fist and threatening to ‘end’ her life.”  Though Mark was exonerated of any criminal allegations, his wife obtained a civil protection order that he stay away from her and only granted supervised visitation with his son.   

Understandably, Mark was frustrated by the situation.  In November, he posted the following vent on his Facebook,

“… if you are an evil, vindictive woman who wants to ruin your husband's life and take your son's father away from him completely — all you need to do is say that you're scared of your husband or domestic partner… , "

Mark is right.  More and more women are seeking protective orders against their husbands—often done for no other purpose but to obtain an upper hand when it comes to negotiating property division and child custody.   And they are succeeding.

Father’s rights groups have tried to bring attention to the double standard in domestic courts for many years.  Attorney Liz Mandarano wrote about this particular issue for the Huffington Post, and found that research into the use of protective orders in divorce proceedings found that most were either unnecessary or issued on false grounds.  She calls it “the worst thing a woman can do in divorce proceedings”, and says:

“ It is a well-known fact within the matrimonial legal community that many lawyers and their clients use these orders of protection to gain a strategic advantage over their spouse from which it is difficult to recover. And since no judge wants to be the one who "gets it wrong" leading to a tragic result, these orders are easily obtained.”

A party asking for a protective order must merely show by preponderance of evidence (“more likely than not”) that whatever facts alleged are true.  The accused is not notified of the proceeding beforehand, and has no ability to defend himself before the temporary order is issued. The temporary order lasts until a hearing to determine whether or not it should be made permanent, and the lowest standard of proof is used to evaluate the facts.

Mandarano says there’s lots for women to gain in getting stay away orders.  First, it grants exclusive use and occupancy of marital residence to the accuser, forcing the accused to immediately move out.  It sets a precedent for child custody, such that the accused is presumed to have sole custody.  It also limits the accused’s access to the children, so that it diminishes the likelihood he’ll be found the primary caregiver.    The accuser has “the upper hand in property litigation & spousal support,” and the accused cannot access his financial documents, legal papers, or personal property.  And, most importantly to divorce lawyers, it creates a windfall for attorneys.  Since protective orders prevent the parties from contacting one another, all communication must be carried out between their lawyers.

Worse of all, says Matarano, “ if [the accused] acts too aggressively to refute the allegations, it may make him suddenly seem more menacing. The innocent who are accused are therefore thrown into overwhelming turmoil from which it is difficult to recover.”

This is precisely what has happened to Mark Byron.

Even though Mark had blocked his estranged wife from accessing his Facebook account, she nevertheless came across the post (and some of the supportive comments his friends made), and filed a motion stating that Mark violated the terms of the protective order by engaging in activity that caused his wife "to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury."

The most outrageous part of the story was the court’s response.   They agreed with her, and fined Mark $500 and demanded he serve 60 days in jail.  Alternatively, he could post an almost 250 word judge-written apology every day for 30 days to his Facebook account and then “friend” his wife (or another person of her choosing) so they could monitor his compliance with the order. 

In essence, Mark was merely venting his frustrations to his friends.  It was not directed at his wife—she wasn’t even granted access to his account, and there is no indication that Mark in any way sent this message directly to her.  The court reacted unconstitutionally and, in essence, the judge has compelled Mark’s speech under the threat of imprisonment.  I imagine Mark’s attorneys will appeal the decision.

Protective orders certainly serve a valid purpose.  But there is something seriously wrong in our judicial system when an opposing party in a divorce case can use the order to not only take a man’s property and children away from him, but also prevent him from complaining about it.

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