What is an injunction?
Injunctions are formal orders of protection issued by a court. Injunction records are maintained by the clerk of courts and local law enforcement. There are two kinds – temporary and final. A temporary injunction is not nearly as big of a deal as a final injunction. Anyone can easily get a temporary injunction against you. A final injunction is more difficult to get and is not issued without a hearing or trial.
Injunctions are considered civil – but don’t let that fool you. Injunctions should be taken very seriously because they can remain on your record for the rest of your life and they can follow you anywhere you go. In many ways, having an injunction on your record is similar to having an actual criminal record.
The process for getting an injunction starts with someone (called a petitioner) filling out paperwork for an injunction. The petitioner is basically accusing someone else (called the respondent) of being violent or stalking them (or exploiting a vulnerable person) and they are asking the court to issue an order of protection. If the respondent violates that order of protection, they can go to jail!
IMPORTANT TIP: Whether you are a Petitioner or a Respondent, you do NOT have to go to court alone! If you are being accused of stalking or some kind of violence, we can help defend you against the injunction. If you are the victim and need help to get the court’s protection with an injunction, we can help you too. Court can be a stressful experience for anyone – and you do not want to make any mistakes that you cannot take back. Call us today to see what your options are as far as having one of our attorneys attend court with you.
Frequently Asked Questions on Injunctions
How do I get an injunction?
It is not difficult to get an injunction against another person in Florida. All you have to do is fill out the appropriate paperwork at your local clerk of court’s office. An attorney can help you get that done or the people at the clerk’s office can help you fill out the paperwork.
If a random guy or your ex-boyfriend is stalking you, you can get a court to give you an injunction to prevent him from having contact with you. If your girlfriend is abusive with you and hits you, you can get a judge to grant an injunction against her for domestic violence to prevent her from having future contact with you.
To get an injunction, you will have to fill out an application which will require you to explain what happened, basically explaining why you need the injunction. You should know that this information will become a public record. So including photos, videos, or handwritten letters of the other person cannot be taken back. You should understand that, in this modern digital age, some things can never be taken back. For that reason (and many others), it is highly advisable that you talk to an attorney before doing anything.
Another reason to use an attorney to get an injunction is because sometimes petitioners (who go into court without an attorney) will not know exactly what they have to prove to the court to get the injunction. An attorney can help walk them through what is needed and help them to present the evidence clearly to the judge to improve their chances of getting the injunction.
Overall, the process for getting an injunction is difficult – and you can get help along the way from a variety of sources. But there may be other avenues to get the results you are seeking.
How do I beat an injunction?
Injunctions can be beaten (or defended) in many ways. “Beating” an injunction means that no final order of injunction is ordered against you. A temporary injunction is not nearly as bad as a final one. And the temporary injunction does not create a “record” against you because no judge formally “adjudicates” you of anything in a temporary injunction.
These are the most common ways you can beat an injunction:
1. Petitioner voluntarily dismisses it.
2. Petitioner does not show up to the final injunction hearing.
3. Petitioner agrees to keep the injunction temporary.
4. Fighting the injunction in court (this one is the hardest and most expensive option).
Many times, we go to court with our clients and we are able to reach a resolution that is acceptable to the petitioner. In other words, we convince the petitioner to voluntarily dismiss the injunction against you.
A second way of beating an injunction in Florida is when the petitioner does not show up for the hearing – or they have a change of heart and just leave. Sometimes, when the petitioner knows they are making up the allegations and they see that we are going to court prepared with evidence and witnesses, they just leave – because they know the truth is going to come out and they are going to lose.
A third way of beating your injunction is when the petitioner agrees not to seek a final injunction against you. Instead they agree to extend the temporary injunction that is already in place for a period of time,. If there are no violations of the injunction during that time frame, the parties agree to dismiss the injunction. Remember, the main goal is to prevent a final injunction on your record. The temporary one does not matter nearly as much.
Finally, you can beat the injunction by going to trial with an experienced trial attorney. An attorney can defend and beat the case in many ways. You can take depositions of any potential witnesses. You can call witnesses to present evidence. You can call expert witnesses. You can file motions with the court. You can threaten sanctions against the other party (if their claims or defenses are not based on evidence or made in bad faith). You can file interrogatories. You can take the case to trial and beat the injunction on legal technicalities. For example, if the petitioner fails to provide evidence of one of the required elements, the injunction should be dismissed.
Most people want to know if an injunction can be dropped or voluntarily dismissed. The short answer is yes, it can. It will depend on where you are in the process, however.
If you want to get an injunction dismissed, there are several ways you can do that. These are the easiest ways to get an injunction dismissed:
1. File a notice of voluntary dismissal.
2. Do not proceed with the final injunction hearing.
If you are the petitioner and you obtained a temporary injunction against someone, you have the right to dismiss it. You should remember that you are in control here. If you are asking the court to do something and you change your mind, you can do that. Just go in and tell the court that you want it dismissed. If you simply do not show up to a hearing while you are still trying to get it, the court will also just dismiss it.
You can kind of look at it like filing to get married. You can do all the paperwork and set an appointment for the ceremony at the courthouse. If you don’t show up, you don’t get married. The court will not marry you unless you come to court. Same principle with an injunction. You can apply for one, receive a court date for a hearing, but if you (the petitioner) do not show up, the court will simply not give it to you.
You will not get in trouble for dismissing an injunction.
You will not get in trouble for not showing up for an injunction hearing (if you are the petitioner).
You will not get fined and the court will take no action against you.
If you are the petitioner, there are no negative consequences for dismissing the injunction or failing to show up for the hearing.
What is a final hearing?
A final hearing is essentially a trial. Whether you are the petitioner or the respondent, this is your one chance to make your case to the judge and present the evidence you want them to consider.
A final hearing is where the judge will hear the evidence and make a decision on whether or not to grant a permanent injunction. There are no juries in injunction hearings. The judge is the jury and makes the final decision.
When you walk into the courtroom for the final hearing, the judge will first identify the parties and have them sworn in by the clerk. They will have to promise to tell the truth, the whole truth and nothing but the truth.
Next, the judge will ask if the petitioner wants to go forward with the injunction. If the petitioner no longer wants an injunction, the judge will dismiss it and you are done. If the petitioner still wants an injunction, the judge will then ask the respondent if they will agree to the injunction. If the respondent agrees, the judge will grant it and you are done.
When the petitioner still wants the injunction and the respondent will not just agree to having an injunction entered, that is when the court will have a trial on the matter – a final hearing.
What is a temporary injunction?
A temporary injunction is when a judge orders an injunction against you without you having the opportunity to be heard or to defend yourself. But it’s not the end of the world. Try not to panic. While this is a very stressful time for anyone in this situation, it is temporary. And remember that a temporary injunction can be entered falsely against anyone. All it takes is someone making an accusation. A final injunction is completely different – and arguably much worse. There is usually nothing a person can do to prevent or avoid a temporary injunction.
A TEMP INJ. ORDER LOOKS LIKE THIS – Insert Photo of temp order PDF into webpage.
It looks like this.
Can I violate a temporary injunction?
Absolutely. But you have to have been served or you have to know about it.
You cannot violate the injunction if you do not know about it or you have not properly served. In other words, there may be a temporary injunction out there right now against you. If you don’t know about it, and you call the person who got the injunction against you, how can anyone say that you violated it? They can’t. So you have to know about the injunction before you can violate it.
Do not let anyone bully you around. Call an attorney to discuss matters like this. You deserve to know your rights.
Sidenote: Often times, the clerk’s office will not show the injunction record on the web until it has been served on the other person. In other words, the records are hidden until all parties know about them. Even after the respondent is served, it may take the clerk a few days to update their system and make the case visible online.
What is a final injunction?
A final injunction is formal court order where a judge formally adjudicates you to be a stalker or violent or exploitative. In other words, a final injunction is bad. You want to avoid one at all costs. If you get a final injunction, time is of the essence and you should try to appeal it as soon as possible. But that can be very expensive. The better route is to try to avoid it before it happens. In other words, as soon as you are served with a temporary injunction, call an attorney to prepare defending against it.
Once a final injunction is ordered against you, it can last for a long time (or indefinitely) AND the court can force you to do certain things and report back on a regular basis. This amounts to a probation-like sentence very similar to criminal cases. If you violate the court’s orders, you can go to jail.
Do not confuse a permanent injunction with a final injunction. A permanent injunction is a final injunction, but a final injunction is not always permanent. So in other words, a final injunction can last a few months. A permanent injunction is a final injunction that lasts indefinitely.
Should I just agree to the injunction?
No one should ever just agree to an injunction without a good reason. An injunction can have a lasting, negative effect on your future. It is a rare thing when it is in your best interests to simply agree to a final injunction. So do not do it until you have educated yourself about the consequences and ramifications.
When you walk into court, the court will ask the petitioner if they want to move forward with the injunction. If the petitioner wants to continue, the court will then ask the respondent if they will agree to the final injunction. Don’t do it! Not until you are sure it is in your best interests.
Be sure to read up on the negative consequences of a final injunction.
What can I expect the final hearing?
A common question we get a lot is what will happen at trial or the final hearing. What you can expect is a courtroom filled with people with are probably very short on patience. You have to understand that the judges, clerks and courtroom deputies hear injunction cases all day long. Couples, neighbors, and co-workers come in to their courtroom and they argue over text messages, Facebook posts, Instagram posts, Twitter tweets, and so on. When it is finally your turn to walk into the courtroom, the best course of action is to be prepared, be nice, and present your case quickly and efficiently.
Once the judge determines that a final hearing is necessary, they will look to the petitioner to present his or her case. The parties may request to make brief opening statements. The judge may or may not allow it. If they do, give them a very brief overview of your case and why you are there. Try to limit it to a minute or two. Then present your evidence.
A brief note: If you are not a lawyer, you should know that judges can be impatient when it comes to these kinds of cases. Because they hear a lot of them!! They probably have no idea who you are or why you are there. Judges are very busy people. Make it easy for them. Introduce yourself and keep your case as brief as possible. People think the more they say, the better. I find that not to be the case. Short and sweet is often much more effective. The judge will appreciate your consideration of their time and the court’s resources.
Presentation of the Evidence
This is the time to talk to the judge on a very personal level and convince him or her that you need protection. This is the time to present photos, videos, 911 calls, and any other evidence you may have to prove your case. Your testimony (i.e., what you say and how you say it) will be critical, as it will be evaluated by the judge.
You should also know that the respondent (or their attorney) will have the opportunity to cross examine you – and they probably will. So how you act and what you say when they ask you questions will also be evaluated by the judge. Be honest. Be yourself. Judges do not like it when witnesses avoid direct questions or argue with the other side. It is the same way when it comes to any witnesses that you call on your behalf.
NOTE: Do not argue with any witness during the presentation of the evidence. This is much easier said than done. Ask questions, allow the witness to answer. When you are being asked questions, answer them and say nothing more. You will lose points and credibility with the judge for arguing when you are supposed to be presenting evidence. Save arguments for last.
Once all the evidence has been presented, you may make a closing argument. This is where you review the evidence that was presented and ask the judge to believe your evidence and disbelieve the evidence of your opponent.
If for whatever reason, the judge does not ask for closings, request the chance to make one. But try to read the body language of the judge. If you think the evidence (and the judge) are in your favor, you may not want to make a closing argument. Let the judge then simply rule in your favor.
How long does an injunction last?
Injunctions can last a week, a month, 6 months, a year, 2 years, 5 years, or forever. How long an injunction lasts is really up to the judge. An injunction can last any amount of time.
A temporary injunction can last as long as it takes to get the other party served. Until the final hearing, the temporary injunction will be in force. Usually a final hearing date is set within a few days or weeks of a person getting served with a temporary injunction. But don’t let that term “final hearing date” fool or confuse you. It is not necessarily final. It can be moved or continued for many reasons.
A final injunction creates a record and it can last a very long time. Injunctions can last as long as the judge says they should to achieve their purpose. If a person is successful in getting a final injunction, the judge will usually ask the winning party how long they would like to make the final injunction last. If you ask for 30 years, the judge will probably not agree that 30 years is necessary. Most injunctions last one to two years, depending on the circumstances. But I have seen injunctions issued that were permanent – in other words, they had no expiration date.
No matter how long the injunction lasts, either party can always ask the court to amend it. In other words, you can always ask the judge to end the injunction.
What is the worst that can happen?
You can go to jail. A violation of an injunction is criminal offense. Therefore, injunctions should be taken very seriously right at the outset – before any hearings take place.
If a injunction against you is granted, you will have to abide by all the conditions of it. Once an injunction is in place, you can get arrested if the other person accuses you of violating it. It is just that easy for them. It happens all the time. If someone is a terrible person and wants to see you suffer, they can do that to you. There is very little anyone can do to stop it. Law enforcement officers are not perfect and they do not always get it right. They may choose not to investigate an allegation of a violation of injunction. Sometimes they just take the person’s word for it – and they arrest you. That sucks. And it happens.
The worst that can happen is that you get an injunction granted against you and the other person has that control over you for the duration of the injunction. The judge can also put you on a sort of “probation” by ordering you to complete certain conditions and reporting back to the court. The judge can order you to complete anger management, batterer’s intervention courses, counseling, psychological evaluations, and so on. It can really, really suck. If you don’t comply with the court’s orders, they can hold you in contempt and/or forward the matter to the state attorney’s office for prosecution.
Do I need an attorney for an injunction?
You do not NEED an attorney for an injunction matter. It is highly advisable that you do get one, however. Most people who go to court on injunctions do not go with an attorney. However, most people who do go with an attorney have a much higher chance of getting a more favorable outcome. This is oftentimes simply because an experienced attorney knows the system and procedure, is more comfortable in a courtroom, and knows alternative ways to resolve injunctions.
Should I get an attorney to go to court with me for an injunction?
Yes, absolutely. Injunctions are serious civil matters.
Why should I go to court with an attorney?
If you are either the petitioner or the respondent in an injunction case, you cannot talk to the other person. Your attorney can. The benefit of this is significant. Sometimes, one side will want to resolve the matter short of hearing. If you can resolve the matter amicably beforehand, it may save the time and uncertainty of going before the judge.
Sometimes a petitioner will prefer to have an informal or formal agreement with the other party in place of a final injunction. An attorney can help accomplish that for you.
Can I go to jail for an injunction?
You can absolutely go to jail for violating an injunction – this only applies to respondents, however. Violating an injunction is a first-degree misdemeanor offense and you can go to jail, be put on probation, or a combination of the two (for up to one year) if you violate an injunction.
Examples of violating an injunction would be refusing to leave a shared residence, refusing to surrender firearms, destroying property belonging to the other person, contacting the other person, and so on. Accidentally running into the other person in a public place (like Publix) is not a violation.
If you are the petitioner, you cannot go to jail for dismissing an injunction or failing to show up to a final hearing.
Can I seal or expunge an injunction?
You can seal or expunge an injunction by filing a motion with the clerk of courts. The motion is called a motion to determine confidentiality of court records. If this motion is granted it accomplishes very much the same thing as sealing or expunging a criminal record.
The most important thing is that the details of the injunction not remain public – or accessible to the public. All a person has to do right now is to see the details of any injunction is make a public records request with the clerk of court. That’s really bad if you have been falsely accused of stalking, violence or exploitation. If you have been accused of any kind of injunction, it is highly advisable that you try to get the record sealed. Technically, an expunction is where the file is destroyed. Sealing is where the contents of the record are not accessible without a court order. This motion accomplishes the latter. The file will not be destroyed. It will only be made confidential.
To be successful on a motion to determine confidentiality of court records, you will need to do very specific things. First, properly file the written motion and a proposed order. Second, properly notice the opposing party. Third, specify what parts of the file you are requesting be made confidential (you can say the entire file). Fourth, specify the legal basis and authority which applies to your case. Fifth, state that there is no less restrictive means to protect your interests. Finally, you have state in writing in the motion that your motion is made in good faith.
Once you file the motion, the judge will determine whether or not have a hearing. The judge may also just grant or deny your motion without a hearing – but they need to say why in the order.
It is a good practice to discuss this motion during any hearings that you may appear before the judge on in the injunction matter. For example, if you are already there for a final hearing, you may as well discuss this issue at the conclusion of the hearing or trial – because all the parties are present.
If you want to try to have your injunction record sealed or expunged, give us a call today to see if we might be able to help.
Can I get the other party to pay for my attorney’s fees?
Yes, you can get the other party to pay for your attorney’s fees in an injunction case. Most people and even attorneys do not know that. The basis for it lies in a recent Florida Supreme Court Case called Lopez v. Hall, 233 So. 3d 451 (Fla. 2018). This case holds that the statute on sanctions (F.S. 57.105) applies to injunctions. If the other party files a frivolous injunction against you, you can ask the court to order them to pay your attorney’s fees.
The judge in an injunction case shall award reasonable attorney’s fees to the prevailing party by the losing party and the losing party’s attorney on any claim or defense in which the court finds the losing party knew or should have known that either (1) the claim or defense was not supported by the application of then-existing law to those material facts; and (2) the claim or defense would not be supported by the application of then-existing law to those material facts.
To be clear on just when a claim or defense is supported by the material facts, courts have interpreted that to mean when the party possesses admissible evidence sufficient to establish the fact if accepted by the trier of fact.” See Siegel v. Rowe, 71 So. 3d 205 (Fla. 2nd DCA 2011).
Can I appeal an injunction?
You can and should appeal your injunction. However, you must do so within so many days of the entry of the final order of injunction. Injunctions are created by statute and interpreted by case law (or precedent). But the law is usually pretty clear. The petitioner has to lay out certain evidence in order to satisfy the statutory requirements. If they do not do so, the injunction must be overturned.
A common problem is that there are so many injunctions heard in so many different courtrooms in Florida every day. So few of them get appealed. Most of the best cases that would be overturned on appeal never get overturned because the losing party does not have the money to fight it with a private attorney.
In order to appeal an injunction, you will have to hire a private attorney to file a notice of appeal. To prepare the appellate brief, the attorney will need the full transcription of the hearing or trial. That transcription can be expensive, depending on how long the hearing or trial lasted. Once the transcript is prepared, the attorney will use what is contained in it to prepare the appeal.
You cannot add additional information to the appeal. In other words, if it did not come out during the hearing or trial, you cannot bring it up in the appeal. That is another thing that most people are not aware of when they go to trial on a civil injunction. That is another reason having an attorney go with you is so important.
Judges are human beings. And human beings make mistakes. Just because a judge issued a final injunction in your case does not mean they were right. Often times, judges get it wrong or the record is insufficient to uphold a final injunction.
Many times injunctions are overturned by the appellate courts for a variety of reasons. For example, if a person presents a really good stalking case to a judge with only one incident of stalking, that is not enough. Stalking requires more than one creepy act. And even if the petitioner presents the bare minimum of two creepy stalking acts, both must create substantial emotional distress in the person being stalked. If the petitioner does not get that into the record, your injunction should be overturned by the appellate court.