Domestic Violence and Divorce: Protective Orders and the 60-Day Waiver
If family violence is part of what’s bringing you to consider divorce, your safety comes first — ahead of any legal strategy or procedural question on this page. If you are in immediate danger, contact local law enforcement or the National Domestic Violence Hotline at 1-800-799-7233. What follows is information about how Texas law addresses family violence within a Divorce & Separation case in Bexar County, so you can understand your options once your immediate safety is addressed.
Texas Courts Are Required to Tell You About This Option
Here’s something worth knowing that many people going through this don’t: under Texas Family Code Section 6.404, if a court handling your divorce believes — based on any information it has received — that you or a member of your household may be a victim of family violence, the court is legally required to inform you of your right to apply for a protective order. This isn’t a discretionary courtesy; it’s a statutory duty, added specifically because the Texas Legislature recognized that many people don’t know this option exists. If this applies to your situation, don’t wait for the court to raise it — talk to your San Antonio family law attorney about a protective order as soon as it’s relevant to your case.
What a Protective Order Actually Does
A protective order under Title 4 of the Texas Family Code is a court order specifically designed to protect someone from family violence. Depending on the circumstances, a protective order can prohibit the other person from contacting or going near you, your home, your workplace, or your children’s school, and can address related safety needs during this difficult time.
A family-violence protective order generally lasts up to two years, though courts can issue one for a longer period — including for the person’s lifetime — in more serious circumstances, such as when the violence caused serious bodily injury or where there’s a prior family-violence conviction. Violating a protective order is treated as a criminal matter, not simply a civil issue: law enforcement is required to arrest someone if there’s probable cause a violation occurred, and repeat violations carry escalating criminal penalties.
One detail worth being precise about: a protective order addresses safety, not property. It does not, by itself, affect who owns real property — that’s addressed separately through your divorce’s property division, not through the protective order itself.
How a Protective Order Can Speed Up Your Divorce
Texas law requires a 60-day waiting period before any divorce can be finalized — but there are exactly two exceptions to that rule, and both involve family violence. Under Texas Family Code Section 6.702(c), a court does not have to wait the usual 60 days if either of the following is true:
- Your spouse has been finally convicted of, or received deferred adjudication for, an offense involving family violence against you or a member of your household, or
- You have an active protective order under Title 4, or an active magistrate’s order for emergency protection, based on a finding of family violence committed against you by your spouse during the marriage
These are the only two circumstances that waive the waiting period under Texas law — mutual agreement between spouses, regardless of how strongly both sides want a faster divorce, does not qualify. If either of these circumstances applies to your situation, your divorce can potentially be finalized well before the standard 60-day mark, which can matter enormously when safety and a clean legal break are the priority.
How Family Violence Affects the Rest of Your Case
Beyond the waiting period, a documented history of family violence can influence other parts of your divorce. As covered on our companion guide to fault-based divorce, proving family violence as a fault ground can support a disproportionate share of the community estate being awarded to you, and it’s one of the specific factors that can support an award of spousal maintenance under Texas law. These are separate questions from the protective order itself, but they often arise together in the same case, and your attorney can help you understand how the pieces fit together for your specific situation.
What This Means for Your San Antonio Divorce
If family violence is part of your situation, the practical priorities are: get to safety first, and use the resources available to you, including local law enforcement and the National Domestic Violence Hotline if you’re in immediate danger; talk to your attorney early about whether a protective order is appropriate for your circumstances, since it may also affect your divorce timeline; and know that the court itself has an obligation to raise this option with you if there’s any indication it may apply. None of this requires you to navigate the legal system alone, and prompt legal representation can make a real difference in both your safety and your case.
Frequently Asked Questions
Q: Does the court automatically know to ask me about a protective order?
A: Texas law requires the court to inform you of your right to apply for one if it has any information suggesting you or a household member may be a victim of family violence — but don’t wait for the court to raise it. If this applies to you, tell your attorney directly and early.
Q: Can a protective order speed up my divorce?
A: Yes, potentially. Texas’s usual 60-day waiting period for a divorce can be waived if you have an active protective order (or magistrate’s emergency protection order) based on a family violence finding against your spouse, or if your spouse has been convicted of or received deferred adjudication for a family violence offense against you or a household member.
Q: How long does a protective order last?
A: Generally up to two years, though a court can issue one for longer — including for life — in more serious circumstances, such as cases involving serious bodily injury or a prior family violence conviction.
Q: Does a protective order affect who gets the house or other property?
A: No, not directly. A protective order addresses safety. Property is addressed separately through your divorce’s property division.
Q: What happens if my spouse violates a protective order?
A: This is treated as a criminal matter. Law enforcement must arrest if there’s probable cause a violation occurred, and repeat violations carry increasingly serious criminal penalties.
Q: I’m afraid to leave. What should I do right now?
A: Your safety comes first. If you’re in immediate danger, contact local law enforcement or the National Domestic Violence Hotline at 1-800-799-7233. From there, talk to a family law attorney about a protective order and your options for moving forward safely.
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Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000
Division: Family Law San Antonio
Practice Area: Divorce & Separation
