Amber Heard has dropped her request for a restraining order against Johnny Depp. This Domestic Violence Restraining Order (DVRO) is not unlike those filed in many dissolution cases across California. It is an interesting case to use in discussing the workings of DVROs, their use as a strategy, and their purpose.
When a dissolution (divorce) begins, it is not uncommon for one party or the other to file a request for a restraining order. If granted, restraining orders will provide some “protection” for the fearful party, exclude the other party from the residence, and potentially play a role in the amount of spousal support awarded in the case.
Clearly the main benefit of a restraining order is the offering of protection. The reality is that the protection comes in the form of an order that the other party stay away. The difficulty is in that the order itself doesn’t prevent the other person from coming near the protected party — it just provides penalties once the order is violated. For the majority of restrained parties, the order and looming consequences are enough to stay away.
Exclusion from Residence
In family law courts, a spouse can request “exclusive use and possession” of a property. Typically these hearings take 30 days to get in front of a judge and, barring “exigent circumstances” they are typically not granted.
With a DVRO, the court must take the additional step of protecting the filing party, and so it must exclude the one party from the residence — most often it is the defendant.
The effect is the excluded party now has no “home base” and diminished access to records and personal items. Many people believe that it gives the remaining party an upper hand in being awarded the residence, but that is not the case.
Effect on Spousal Support
The existence of Domestic Violence is one of the factors considered in awarding temporary and permanent spousal support. For temporary support (support ordered before a judgment is in place), the court may find an immediate need for the support and even a higher amount due to cover expenses and/or medical care. For permanent support (support ordered in a judgment), Domestic Violence is one of 14 factors considered in the support award amount. A person who has a domestic violence conviction against them cannot be awarded spousal support.
Unsettling Factors in the Heard/Depp Case
Surrounded by Silence: Victims of Domestic Violence very often suffer through repeated violent attacks for years. Very often they are silent about the abuse — even to the point of denying it or excusing it when confronted. Very often they do not want to talk about the abuse, and it is difficult to get them to talk about it in public/court.
Clearly that is not the case in the Heard/Depp case. Almost immediately after the accusations were “leaked” and the filings were reported on, high-profile attorneys took the issue to the media. This was in public long before it was scheduled for hearing.
Primary Focus: When protection from another party is necessary, action should be taken immediately. That most often means the focus of the requested order is the abuse and the need for protection — other issues generally fall to the divorce proceeding instead of the DVRO proceeding.
Heard made a request for spousal support in her DVRO request. This seems to be indicative that money was as much a concern as safety in the request. As I mentioned above, a DVRO can be a factor in determining spousal support, and there had to been some strategy in asking for support at the same time as asking for the DVRO versus asking for it through the divorce. Clearly, the attorney wanted the violence accusations to impact a judge’s decision as to support.
Evidence: Victims of Domestic Violence are very often afraid to obtain evidence — setting up a recording or taking photographs would put them in danger if the perpetrator found out.
Heard made a video (which was reportedly “leaked”) apparently from her cell phone where she set the phone up after Depp had apparently gotten angry about something and then she made repeated adjustments to it to keep Depp in frame. These are not the actions of a typical victim of domestic violence.
Burden of Proof: In domestic violence cases, the court has to find by a “preponderance of the evidence” that abuse took place. That means it has to be only slightly more likely that it did than that it did not — for example a 50% probability would not pass this burden, but a 51% probability would.
I am not saying there was domestic abuse, and I’m not saying there was not. I don’t have all the evidence, and I don’t have to decide. This is not your typical abuse scenario — from alleged perpetrator, to alleged victim, to the manner in which the allegations were published to the in-perfect-frame recording of an incident, to the highly publicized filing and evidence, to Heard’s very public statements, to the case ultimately settling without a restraining order and with money being exchanged. When word of this case first surfaced, posts across Facebook, Twitter, and other social media decried Depp’s alleged actions. In the world of social media allegations become convictions. In the world of family law where something established to protect victims is very often used as a tactic to get “more”, those same allegations are met with a more skeptical eye and patience to see how the case plays out.