Should I Have a Lawyer to Help Me Get a Restraining Order?

Yes . Having a lawyer increases your chances of winning a restraining order, and should also make the process faster and less confusing.

What are the types of restraining orders?

Massachusetts offers “abuse prevention orders” (209A Orders) and “Harassment Prevention Orders” (258E Orders). The court published this handout that offers a reasonable explanation of the difference.

The Restraining Order Application Process:

If you want a restraining order, you can file an application  at your local courthouse. Courthouses are generally open from 8:30 a.m. to 4:30 p.m. Outside those hours, your local police department can help connect you with an on-call judge, who can conduct an emergency hearing over the telephone.

Much of the application is dedicated to collecting administrative information about you and the person you want the order against (the defendant). Restraining orders are most often denied because the applicant fails to properly explain why they want an order in the attached affidavit.

An affidavit is a sworn statement that is part of the restraining order application. While there are some instructions on the affidavit, those instructions merely ask the applicant to “Describe in detail the most recent incidents of abuse.”

Restraining orders are also often denied because the incidents listed in the affidavit are not “harassment” or “abuse” in the legal sense. Dozens of legal decisions have been published that narrow the definitions of those words, and “harassment” and “abuse” as they’re normally used do not mean the same thing as they’re meant in the legal sense.

An experienced attorney will have the tools to stay current on those decisions as they’re published, such as subscription-only databases like Lexis, which is what we use at Fiorentino Legal, P.C. If your affidavit does not list enough instances of “harassment” or “abuse” – as defined by current law – the judge may deny your application.

If you do not have a lawyer and you seek a restraining order at a courthouse, it’s likely a district attorney’s office ‘victim witness advocate’ will offer to help you fill out and the application and affidavit. While there are many well-qualified victim witness advocates, you should understand that:

After your application is filed, the judge will hold a short hearing to determine whether you have met the threshold for a temporary restraining order. Usually this involves a review of your application and affidavit, and then the judge may have additional questions for you. After the judge has made her decision, the matter will be scheduled for a two-party hearing, usually within the next 10 days. If you win the decision, the judge will issue a temporary order that will last until that second hearing.

The defendant will get notice of the hearing, and may hire an attorney of his own. A skilled defense attorney can make a big difference in the outcome of a restraining order hearing. It’s unwise to go up against one without professional preparation and an attorney on your side that has a clear understanding of current law. You may not find out whether the defendant hired an attorney until the hearing begins.

At the hearing, you will have to explain to the judge why you want a restraining order all over again, and you’ll have the opportunity to offer evidence that supports your argument. This could include photographs, voicemails, or text messages. Whether it’s possible to offer something as evidence is governed by the court’s rules. It’s difficult to know how those rules apply without experienced legal counsel.

It’s also important to prepare exhibits properly for trial. For example, a judge may refuse to review text messages on a person’s telephone, as it’s not convenient to keep copies for the court’s file. Some attorneys may prepare in advance by collecting screen shots of particular text messages, but that can seem like cherry-picking evidence, even if they have the best intentions. Fiorentino Legal, P.C. has invested in specialized software that allows us to conveniently download and print complete transcripts of text conversations to be offered as evidence during hearings. The way the judge knows she’s getting the whole story. Few other attorneys offer that service, and we believe that sets us apart.

At the hearing, the defendant’s attorney will have the right to challenge whether you’re telling the truth by asking you questions or offering evidence of his own. Anything you’ve ever said or written about the defendant or your case could be used against you. This includes the affidavit you filed with your application, so it’s important that your affidavit was drafted with that in mind.

How long does a restraining order take? 

Restraining orders usually take place over the course of two relatively short hearings that are less than an hour each. Sometimes the hearings can involve multiple witnesses and take place over the course of several days. Fiorentino Legal, P.C. can help develop a reasonable strategy that helps tell your side of the story without getting sidetracked.

How much does representation at restraining order hearings cost?

It depends on the complexity of the hearing, but Fiorentino Legal, P.C. takes care to know the market rates for restraining order representation. We do our best to stay competitive and affordable for most families. Fiorentino Legal, P.C. offers no-cost initial consultations for restraining order matters.

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