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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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Need to draft a cease and desist letter for my estranged wife

Customer Question

Need to draft a cease and desist letter for my estranged wife that has filed for a temporary and will attempt to file for a longer lasting order of protection in PA - WITHOUT BASIS.
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.

Hello,

I'm a bit confused by your question. What exactly do you wish to accomplish via your cease and desist letter (what do you want your estranged wife to cease and desist from doing)?

Thanks in advance.

Customer: replied 1 year ago.

Quite simply I do not want her to file any further order of protections from me. I received and emergency eviction from my residence 24 hour order of protection. She has indicated through other individuals that she will seek a longer lasting order of protection.


 


I have moved temporarily from my residence. I do not wish any further contact with her for a long time if ever.


 


The orders of protections or PFA's as they're called here are damaging to my future, as well as emotionally damaging, and as I stated unwarranted.


 


While I feel she should be sued for her actions. At this point. I just don't want to have to fight off another PFA when the point is no contact, and I don't even want contact or to be near her at this time.

Expert:  socrateaser replied 1 year ago.

Okay, thanks. You could write something like this:

[letterhead]
[date]
[recipient name and address]

Dear X:

Pursuant to Title 18 Pa.C.S. § 2709, I hereby demand that you cease and desist from continuing further towards me, as prohibited by the aforementioned statute. For your convenience:

(a) A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:

(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same;
(2) follows the other person in or about a public place or places;
(3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose;
(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures;
(5) communicates repeatedly in an anonymous manner;
(6) communicates repeatedly at extremely inconvenient hours; or
(7) communicates repeatedly in a manner other than specified in paragraphs (4), (5) and (6).

Further acts by you in violation of the above-quoted statutory provisions may result in my seeking assistance from law enforcement authorities to prevent you from continuing the unlawful conduct.

Sincerely,
[yourname]

Hope this helps.

Customer: replied 1 year ago.
Relist: Inaccurate answer.
Customer: replied 1 year ago.
Relist: Inaccurate answer.
Customer: replied 1 year ago.
Relist: Answer quality.
need better answer
Customer: replied 1 year ago.

That doesn't seem to apply at all. She may be able to claim harassment under some of these, and I may be able claim harassment under some of these. However, at present I'm more concerned about the libel and slander (defamation). Which is whatever she claimed to get a PFA.


 


Here's what I drafted, tell me how I'm off base:


 


Dear Ms. M:


I am at present representing myself in this matter. This is a request to cease and desist all defamation of my character and reputation. Defamation of character includes written and spoken statements tending to injure reputation communicated to another. Your defamatory statements involved an emergency eviction and PFA obtained by you and served to me on 7/25/2013.


Please note, that I will not be in direct or indirect contact with you and the aggrieved parties noted on the PFA in any form until I obtain legal counsel on this matter and your actions can be reviewed by my lawyer. This means, I will not be coming to our home nor will I be calling or using any other form of communication.


Also, please understand that I have no ill feelings towards you or your actions. I am not looking for an unneeded legal battle. My prayers are always with you and our two children. By my signed statement you have no reason to fear any action from me other than that would be communicated through legal counsel should that be the case.


As such, I am requesting you to cease and desist all defamation of my character and reputation from the inception of this letter.


I want you to know that I have absolutely no other legal actions pending whether civil or criminal against you or anyone in connection with you. However, further defamation could result in a civil action as unwanted as that is by me.


Sincerely,

Expert:  socrateaser replied 1 year ago.
Hello again,

Defamatory statements made in a judicial action, which includes any legal pleadings filed with the court, are absolutely privileged. The statements cannot be used to prove defamation of character. See Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (PA 1971). That's why I tried to connect your spouse's conduct to a different law.

You can certainly demand that your spouse cease and desist in any statements which are not part of a legal pleading or judicial proceeding. But, you didn't identify anything in your question related to such conduct, so I'm not aware that anything like that has occurred.

There is nothing wrong with your proposed letter, as written. Just be aware that you won't be able to sue your spouse for defaming you in a legal pleading, because it's not permitted.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.
Relist: Answer quality.
Close, but not what I needed.
Expert:  socrateaser replied 1 year ago.
The best that I can do is to follow the law. If I were to give you something that would ultimately prove useless, you would later return and ask for my head on a pike. Please tell me what you want, and I'll be happy to try to provide -- to the extent that the law permits.
Customer: replied 1 year ago.

I hear what you're saying. Except I take some offense to the pike comment. But forget it.


 


I believe what she would have done would be considered perjury and not defamation. However, a cease harassment letter is not going to accomplish my objective.


 


A cease in perjury might do it, but I'm not trying to be threatening. I want her to realize there is no threat. Even though it's unfounded, I'm not going near her. So she should cease.


 


How else can this be accomplished?

Expert:  socrateaser replied 1 year ago.

You could say something like:

After reviewing your pleadings connected to the Protection from Abuse (PFA) action, I believe that some of your statements are materially false and that they may rise to the level of criminal perjury.

I do not wish to create unnecessary problems for you, nor for myself -- and I do not understand why you believe you need protection from me. Regardless, I won't allow you to make false statements about me -- and I will vigorously defend my interests in court.

 

That said, I respectfully XXXXX XXXXX you cease and desist from your course of conduct, and that you please consider voluntarily dismissing your current action for the PFA.

Please let me know if this is more like what you're looking for.

Customer: replied 1 year ago.

It is closer I guess. I don't have her pleadings / statements. No words. Just the order. I imagine because it's a 24 hour PFA. Regardless, what I'm looking for is to make sure she doesn't file anything else. I am no threat to her and I want to stay away from her.


 


However, I don't want to scare her. I don't want more flames on the fire. If you get my meaning. If I say perjury which is probably the applicable law, then that would probably ignite...


 


How about we forget everything we just discussed, and I started with::: My wife got a 24 hour emergency PFA and eviction on me. I would like to deter any further pleadings from her, as I feel she is not being truthful. What do I do?

Expert:  socrateaser replied 1 year ago.
Okay...the answer, if you don't want to start a war, is that you show up for the PFA hearing and defend against the charges. Frankly, you need a lawyer, because you want someone who knows how to cross examine a hostile witness, so that you can try to trip your spouse up and show that her allegations are false.

When these PFAs were first created (1980s), practically every judge granted them to any woman who walked in, on the premise that women were unlikely to file such requests without any validity. However, as courts have gained experience with these matters, judges now realize that many of these PFAs are filed to gain the upper hand in a divorce action, rather than because there is any threat by the other spouse.

The problem is that most spouses subject to these orders are so emotionally involved that they think they can walk into court and the judge will just see that their spouse is lying. And, that's just not how things work. If you go in and try to defend yourself without competent legal representation, you will probably lose. I can say this from experience -- I wouldn't even represent myself in one of these hearings, because when you're faced with someone for whom you have feelings, you cannot think straight.

I strongly urge you to hire a lawyer -- one who has substantial experience cross examining witnesses --- not your run-of-the-mill family law attorney. I realize that you came here looking for a cost effective solution, but I want you to win this thing, and my experience tells me that if you try to "do it yourself," that you will not prevail.

This doesn't mean you will win if you hire a lawyer -- but without a lawyer, I think you won't get anywhere.

And, in the meantime, sending letters to your spouse is likely to get her even more enraged. The best thing that you can do right now is to stay completely away from her -- no correspondence or contact of any kind.

Does this make sense, or am I still missing the target?

Customer: replied 1 year ago.

What you are saying makes sense. I do have an ok family law lawyer, but it's the weekend and she's not actually retained for this situation which just occurred. So would I get a criminal lawyer to trip her up?


 


I already have a recording she left my father which says that since the court was closed today (Friday) the order is extended until 5pm Monday. I literally have her on tape saying the order is extended by default. Which is impossible. And I went to police station in our zone at the end of day yesterday as advised by the police officers that gave me the original order. They said if she puts in for more time, we'll have it in our system by EOD yesterday. They had nothing and said I could do whatever...


 


But it's this message she left to my father, which is a lie. Which is what also tipped me off to the fact that she is seeking a longer order. She just missed the fact that the court closed at 11am on this type of pleading. So she made up the fact that the order was extended over the weekend to keep me away. Provided the police are correct...


 


So at present, there is no new order. She'll try for it on Monday. Of course stay away. But she's already proven to be lying about it. So a reasonable thought would be to give her a C & D letter. Of course, I was going to have it delivered by someone else.


 


Like I said, I don't want more lies in pleadings or whatever to even have to fight off. And the defamation thing is because she has been spreading around damaging unproven crap about me and would seem to have been all encompassing...


 


You tell me, am I missing the target??


 


 

Expert:  socrateaser replied 1 year ago.

Every time I have observed a client write a letter to his spouse in one of these situations, it ends up being used to show that my client is engaged in veiled threats -- and the result is that the judge makes the restraining order. So, in my opinion, writing anything -- making any contact of any kind is simply feeding your adversary with potential evidence to use against you. And, it doesn't really matter what you say -- because somehow it will get turned around and used against you. That's what I would do if I were representing your spouse -- and it's what you want to do with the recording from your spouse.

Saying nothing, having no contact, is almost always the best response in these circumstances. Sometimes, it makes the other spouse wonder why you don't seem to care -- and all of a sudden they want to reconcile, because what they are trying is not getting your attention.

As far as the right lawyer, yes, a criminal defense lawyer (or a family lawyer who used to be a deputy district attorney) is the type of lawyer you want, ideally. That's something that I would discuss with your current lawyer. She may actually be glad to try to find someone else to deal with a PFA hearing -- they are a giant pain.

Also, for your own benefit, when you're at the hearing, the goal is to find the entire affair a bit silly. That is, yes, it's a serious matter, but you haven't a clue why your spouse is saying all of this rubbish, and it came completely out of left field. You haven't laid a hand on her, you haven't threatened her in any way, and you're distressed that she would make such claims because they are entirely unsupported by any evidence.

Ultimately, the judge must rule on the facts. If your spouse has no signs of injury and you appear to be level headed and not at all hostile at the hearing, then there is no evidence to make the order -- which means the court must dissolve it.

 

One more thing. Contact the court clerk and find out which judge will be hearing your case. Then find out when the judge holds PFA hearings. Then, go to the court for half a day and watch the proceedings. You will probably find a lawyer who's good at handling those hearings, and even if you don't, you will quickly observe what the judge is looking for and what he/she is likely to rule under various circumstances. Most of these PFA hearings run no more than 10-15 minutes, so you can see a lot of different circumstances in a half day session.

Hope this helps.

Expert:  socrateaser replied 1 year ago.
Hello again,

I was just wondering how things were going with your case and whether or not you needed any further assistance.

Please let me know if you have any additional questions, or if my original answer is satisfactory.

Thanks and best wishes.

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