Protective Orders and Exclusive Possession of the Home

Posted on Jul 24, 2023 by Katie Carter


There are not many things scarier than finding yourself in an abusive situation – except, of course, if you have minor children who are surrounded by it, too.

Once you decide that it’s not getting better and it’s time to do something about it, you probably started researching protective orders.  In Virginia, there are stages to the protective order – ones that are good for just a few days or a few weeks, and ones that are good for two or more years.  Unlike most of the family law issues that we handle, which are civil in nature, a protective order is actually a quasi criminal case.  It’s not technically on the criminal docket (like assault and battery would be, if you pressed charges criminally), but it has implications for jobs that require security clearances and things because it shows up on a criminal record, and it restricts the abuser’s ability to own guns, among other things.

For this reason, judges take protective orders seriously.  In fact, in our country, that’s a deliberate choice.  It’s ‘innocent until proven guilty,’ and not the other way around.  Our Founding Fathers figured that, on balance, it made more sense for a guilty man to go free than it did for an innocent man to be punished for a crime he didn’t commit.

From an intellectual standpoint, that makes sense.  From a practical standpoint, though – especially if you’re the woman who is currently fearing for her physical safety and/or the physical safety of her children – it does sort of seem like a judge could maybe consider that, on balance, a dangerous man’s right to bear firearms is like, maybe, slightly less important than his ex-wife’s fear for her life?  But, anyway, I digress.

It’s always going to be a he said/she said situation and, because of the way our justice system is designed to work, the burden is going to be on the accuser to prove.  On balance, the accused automatically has just a little bit more power; again, it’s the whole ‘innocent until proven guilty,’ as opposed to ‘guilty until proven innocent.’

How do I get a protective order in Virginia?

A protective order is one of the best ways – legally, anyway – to protect yourself against domestic violence.  There’s a general prohibition against hostile contact, which can often lead to exclusive possession of the home.  If there are minor children involved and the violence has been directed against the children, the children can also be included (though they don’t necessarily have to be).

It’s all very fact-specific.  It’s easier to get an emergency protective order (that lasts for just a few days) than it is to get a permanent protective order.  An EPO (emergency protective order) is something that you get from the magistrate. Magistrates pass these out like candy at a parade because it’s looked at differently than a permanent protective order.

An EPO is more like an involuntary cooling off period.  A permanent protective order is long term and carries with it potentially severe consequences.  In order to get a permanent protective order, you’ll have to have a hearing.

What’s involved at a PPO (Permanent Protective Order) hearing?  Do I need a lawyer?

A hearing for a PPO is a chance to tell your side of the story.  It’s a full hearing, so whatever evidence, witnesses, exhibits, or other information you have is what you’d use to build your case around.  Any police reports, hospital records, or other tangible evidence you have will help corroborate your story.  So, too, will any witnesses – any friends, neighbors, or others who have witnessed the abuse your ex perpetrated against you.

The judge will want to hear that you are in fear; that you believe that your ex could hurt you at any moment.  If your children are going to be included in the protective order, you’ll want to be able to testify about how your ex was violent towards the children and why, specifically, you feel like their lives are at risk, too.

You don’t have to have an attorney, but many people do choose to hire one.  It’s a pretty significant hearing, especially if you have witnesses to question or evidence to introduce.  Some courts – like Virginia Beach – have a pro bono service to help with protective orders, too, so you might call and ask what’s available, if anything, in your local court.

Will I get exclusive possession of the home?

Exclusive possession is something that is often hard to get.  In a divorce context, you pretty much don’t get exclusive possession unless someone has already moved out or is staying somewhere else.  A domestic violence situation where there’s a protective order is different, though.  The judge WILL often give exclusive possession to one party or the other in a protective order – so there’s a (small) silver lining.

Usually, yes – if a protective order is granted, exclusive possession is not too far behind.  Unfortunately, though, in many domestic violence cases, there are dueling protective order petitions.  If he files for a PO, too, and he gets it – well, it’s anyone’s guess who’ll get exclusive possession.

We even saw a case recently where both a husband and a wife were granted protective orders, but no one formally got exclusive possession.  It’s likely just judicial oversight; after all, in these cases, there are a lot of things happening and a lot of moving pieces.  But it’s definitely something you can – and should – ask for.

How does a protective order impact a larger divorce action?

A protective order is just that – a protective order.  It has very little bearing on the divorce itself, but you’ll likely want to get divorce filed and start working towards a resolution sooner rather than later.  A protective order hearing is handled in juvenile court; the divorce is in circuit court.

The protective order doesn’t move the divorce along any more quickly; you’ll still have to go through the whole process.  Whether contested (meaning that you litigate in court) or uncontested (meaning that you’re able to negotiate a separation agreement), you’ll still need to finalize your whole separation and divorce independent of your protective order action.

To determine the best options for you, consider downloading our divorce book for Virginia women or attending one of our upcoming seminars.  For more information or to schedule a consultation, give our office a call at 757-425-5200.