Frequently Asked Questions - Massachusetts Abuse Law

  1. What is an abuse prevention order?
  2. How do I get a restraining order issued?
  3. How much does a restraining order cost?
  4. I have been served with a restraining order, what do I do?
  5. What constitutes abuse such that I can get a restraining order?
  6. How can I protect myself from a husband who abuses me?
  7. I have an abuse protection order against my ex-husband, but he continues to call me and harass me. What can I do?
  8. My estranged husband keeps threatening to break into my house. Is he correct when he says he won't be arrested because he owns half of the house and we're still married?
  9. Don't husbands have the legal right to discipline their family members?
  10. I think I am in an abusive relationship. What should I do?
  11. How can I get my spouse, who has exhibited violence, removed from the home?
  12. My husband was arrested for assaulting me, can I get the charges dropped?
  13. Is it abuse if the injury is minor?
  14. Can I get a restraining order to protect my pet?
  15. What happens to a restraining order if I move to another state?
  16. Does a restraining order control what I do online and with social media?
  17. How can I use social media and not be accused of violating a restraining order?

1. What is an abuse prevention order?

An abuse prevention order is a Court ordered restraining order against a specified individual ordering them to refrain from committing acts of abuse. The order may compel the individual to stay away from your home or your place of work. It may order them not to contact you and to stay away from you. An abuse prevention order is intended to protect you from harm. There are two types of prevention orders: domestic abuse (sometimes called 209A orders) and harassment or abuse other from domestic partners (sometimes called 258E).

2. How do I get a restraining order issued?

A restraining order is issued by a local court. You can go to the local District Court or Superior Court. If the abuse is abuse from a spouse, room mate, or some one you have a significant dating relationship with, you can go to Probate Court. If the abuse involves a juvenile, you can go to Juvenile Court. At the courthouse, a person will assist you. You will fill out an affidavit detailing the abuse and a petition requesting a restraining order.

You may also call the police who can advise you to go to the local court for an order. If the abuse occurs when the courts are closed, the police can call an emergency number and get a judge who may issue a protective order on the telephone. You will then have to go to the courthouse the next day the court is open.

If you think you need a restraining order, call the police and they can advise you about getting an order.

3. How much does a restraining order cost?

A domestic abuse restraining order (209A) and a harassment restraining order (258E) are free.

Other types of restraining orders will require a filing fee and payment of a constable or sheriff to serve orders. The total cost should be about $300.00. Additional expenses may be incurred as the litigation warrants.

4. I have been served with a restraining order, what do I do?

First you need to read and understand the order. If you violate the order you can be arrested and go to jail so it is very important that you obey the order.

If the order requires you to vacate your home, it usually allows you to remove some personal property in the presence of the police. You should take advantage of this as you may not get another opportunity to remove your belongings for a while. You may have to call the police and schedule the removal of your property.

The papers that are served on you when an order issues are not the complete papers filed in the court. You should go to the court that issued the order and get a copy of the affidavit filed. This will tell you why the order issued. This will give you a better understanding of the situation and allow you to talk to an attorney about the order.

You should consult an attorney to discuss the order and your options.

5. What constitutes abuse such that I can get a restraining order?

The standards are different between domestic abuse restraining orders and harassment restraining orders. Domestic abuse orders require criminal acts (such as battery) or threatened criminal acts (including assault) that cause a person to fear imminent serious physical harm or forcing a person to engage in sexual relations unwillingly. Harassment orders require either three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property or single acts that constitute crimes including causing a person to involuntarily engage in sexual relations.

6. How can I protect myself from a husband who abuses me?

You can call the police or go to the nearest court and file for a restraining order. The police will assist you to get a restraining order if it is appropriate. If your husband's conduct is criminal, they may also arrest him and prosecute him for the crime. If you intend to get divorced, you should file the restraining order in the Probate and Family Court as it will be easier to integrate it into the divorce process.

7. I have an abuse protection order against my ex-husband, but he continues to call me and harass me. What can I do?

Violation of the order is a criminal act. You should call the police and they should arrest him.

8. My estranged husband keeps threatening to break into my house. Is he correct when he says he won't be arrested because he owns half of the house and we're still married?

His threats should be sufficient for a court to issue a restraining order. Once the order issues, it doesn't matter if he owns half the house or you are still married. It will be a criminal act if he violates the order by breaking into the house.

9. Don't husbands have the legal right to discipline their family members?

Husbands don't have the right to use physical force against adults. They can't hit or punch their spouse or adult children. Parents do have a right to use reasonable force discipline minor children. What is reasonable varies based on the circumstances. While a parent may use reasonable force to discipline a child, what the parent thinks is reasonable may not be the same as what a judge thinks is reasonable. If a judge thinks that the discipline was unreasonable, a restraining order may issue. The safer choice is avoid using physical force to discipline a child.

10. I think I am in an abusive relationship. What should I do?

You need to decide what you want to do. Nobody should stay in an abusive relationship but some people choose to do so. You can get help to decide what you want to do. You can consult a therapist, a lawyer, or a clergy member. You can also go to the local District Court or Probate Court and talk to the Victim/Witness Advocate who may also be able to help you make a decision. If you need help to get out of the relationship you can obtain advice from these professionals. You may be able to get a restraining order to remove the abuser from the home. A court can award you custody of any minor children and order support. If you are in an abusive situation and can't afford a lawyer, the Victim/Witness Advocate should be able to help you in the Courts.

You should not remain in an abusive relationship and there are resources to help you get out of the situation.

11. How can I get my spouse, who has exhibited violence, removed from the home?

You can go to the local court and seek a restraining order. If the Judge believes that you are in danger of being abused, the Judge can order your spouse to leave the house without prior notice for a period of up to ten days. After ten days a second hearing will be held in which your spouse will have notice and can attend and argue to stay in the house.

If you have just been abused or are in danger of being abused, you can also call the police to start the process.

12. My husband was arrested for assaulting me, can I get the charges dropped?

You can request that the charges be dropped but you can't make the state drop the charges. Criminal charges are brought by the District Attorney and not by the victim. Therefore, the victim has no right to require that the charges be dismissed. Only the District Attorney can do that. You can request the District Attorney dismiss the charges.

If the District Attorney refuses, you can consult a private attorney about your rights in the matter. Sometimes, a private attorney can get the charges dismissed for you.

13. Is it abuse if the injury is minor?

The law does not make an exception for minor physical injuries. Abusive conduct is not tolerated. It is the unlawful touching or unlawful threat of harm that constitutes abuse. The injury is evidence of abuse.

14. Can I get a restraining order to protect my pet?

If there is a restraining order for one person in the household, then that person or others in the household can get a restraining order for the protection of an domesticated animal in the residence. The order can award custody of the pet to one party or issue an order restraining a party from abusing or harming the animal. This law elevates animals from property to the status of a member of the family. Violation of the order is a criminal act.

15. What happens to a restraining order if I move to another state?

Under federal law, every state is required to enforce valid restraining orders issued by another state. Massachusetts will enforce the restraining orders of other states and other states will enforce those of Massachusetts. If you violate the terms of an out of state restraining order you can be criminally prosecuted.

16. Does a restraining order control what I do online and with social media?

A no contact restraining order includes conduct online. This means that no emails can be sent to the protected person and no attempts to send messages to the person. Police and Judges don't always understand social media so it is better to avoid any mention of the name of the protected person.

17. How can I use social media and not be accused of violating a restraining order?

If you have been ordered to not contact a person and you use social media the following should prevent you from being accused of violating the restraining order on the internet:

  1. Immediately "Unfriend" the person identified in the restraining order as being protected.
  2. Do not write or post anything online that uses the name of the protected person or an other term that identifies them. Identifying Jane as "my wife" or writing about "my children" is the same as identifying them by name.
  3. Do not post any pictures or video of the protected person.
  4. Do not discuss the restraining order in a public forum like Facebook.
  5. Adjust your security settings on Facebook and other social media so that the protected person can't see your content.

DISCLAIMER

This memorandum is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. The answers given above are based on Massachusetts law and practice and should not be considered as applicable to any other state. This web site should not be considered a substitute for proper, individualized advice from an attorney.

Copyright (c) 2012 Alan J. Pransky, Esq.