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PO Series: 2 Types of Protection Orders

• POSTED ON: July 5, 2020

If you are considering filing a protection order or want to learn more about the process, be sure to read our entire 4 article series.

So, what is a protection order?  Protection orders are used to protect a person from harm from another person. Protection orders are legally enforceable and carry criminal implications if violated.

Protection orders can be issued for:

  1. Domestic Abuse
  2. Harassment

Although most of us have a general understanding of harassment and domestic abuse, the legal definition is different. In order to obtain a protection order, you need to meet the legal standard imposed under the law. 

    South Dakota law gives you a way to seek protection from either a family or household member who has physically abused you or has threatened to physically abuse you. The law defines family or household members as: spouses, former spouses, related persons, people either presently or previously living in the same household, or a person with whom you have had a child with.

    If you are filing a protection order against your spouse, you may do so without filing for divorce. Many times, an abused spouse will file for a protection order prior to filing for divorce to help further ensure his or her safety.

    You do NOT have to stay in your home in order to obtain a protection order, particularly if you left to flee from the abuse. This will not cause you to lose the right to live in your home.

    Most protection orders are categorized as domestic abuse orders. However, if your aggressor does not meet the definition of “family or household member” there is another option under the law.
    If you do not meet the definition of "family or household member" to obtain a domestic abuse protection order, you may be able to obtain a stalking protection order under South Dakota Law. There are 3 types of claims that may qualify:

    1. Stalking Behavior (defined below); or
    2. Physical Injury from an Assault; or
    3. A Crime of Violence

    Under South Dakota law, stalking is defined as:

    to willfully, maliciously, and repeatedly follow or harass another person, making a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or willfully, maliciously, and repeatedly harass another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.

Your attorney will assist you in determining which type of protection order best meets your needs. Fortunately, if you apply for the wrong type, the Court will not dismiss your matter. Rather, it is just reassigned under the correct type.

If you are in the midst of a custody or divorce proceeding, you will want to discuss how a protection order will impact your case with your attorney. These proceedings can be intertwined and can cause unanticipated ramifications if not strategically planned out.

We can help. Our family law team understands first-hand what you are going through and is here to help guide you through the process with compassion and care.  Give us a call at 605-702-4997 for a free initial consultation to discuss your rights and options.

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