Divorce When a Protection Order (Restraining Order) is in Place — Part I: Mediation


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Colorado doesn’t technically have “restraining orders,” it has “protection orders” (though many people still casually refer to them as “restraining orders”). And yes, it is possible to have a protection order in place before, during and/or after the divorce is finalized. Sometimes, one party will file the divorce paperwork and request a protection order in the divorce case; all of these scenarios are possible.

In the petition for dissolution of marriage (divorce), the form asks whether or not there are any protection orders in place. If there are, then the divorce will still continue, though some exceptions to the order may be necessary for the process to go smoothly.

The bottom line is that the divorce process doesn’t really affect a protection order. It continues to remain in full force through the divorce process, and failure to comply can result in serious consequences.

The Logistics of Divorce when a Protection Order is in Effect

In Boulder County, any divorcing couple is legally required to go through a process of mediation before their divorce can be finalized. But how can you and your spouse attend mediation if there is a protection order in place?

There are two main ways in which mediation is accomplished. Let’s look at both, within this context.

Shuttle Diplomacy

Pre-pandemic, most mediations were conducted using what I affectionately call “shuttle diplomacy.” This means that the husband and his attorney would be in one room, while the wife and her attorney would be in a second room. The mediator shuttles back and forth between the two rooms, relaying messages and negotiating. The two people would have no contact directly.

Now with the pandemic, most mediations are being conducted via Zoom. The husband and his attorney are in one breakout room, while the wife and her attorney are in another, and the mediator toggles between the two rooms to mediate the case. Again, there is no direct contact between the parties.

Technically, a lot of protection orders provide that you can’t use third parties to communicate with the protected party. In other words, Husband can’t say to Friend, “Tell Wife I said xyz…” The method of shuttle diplomacy clearly violates that term in the protection order. Some people feel that even shuttle diplomacy-style mediation via Zoom violates the protection order, because the client could very easily say something to the mediator with the intent that it be communicated to the other side.

To work around this, I’ve had cases where the parties will request a modification of the protection order to allow whatever type of contact would be present in a mediation. Naturally, the Court is very open to this, as the objective is to resolve the divorce as quickly and with the least amount of conflict as possible.

In-Person Mediation

Some people (not me) actually prefer in-person mediations where everyone is in the same room. I dislike this arrangement because, in my experience, it often deteriorates into “swearing matches” between the parties. A 45-minute fight over who did what is unhelpful and expensive.

If a couple chooses in-person mediation, they will definitely need an exception to the protection order.

To summarize, a protection order will always remain in full effect, whether or not the parties involved are going through a divorce. With the guidance of legal counsel, the parties can elect to go through in-person mediation or shuttle diplomacy mediation (often via Zoom), but in either case, an exception to the protection order must be granted by the Court in order to avoid violating the order.

If you are going through a divorce and have or need a protection order, call our office today at 303-449-1873 to set up a complimentary consultation.

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