DO I NEED A RESTRAINING ORDER DURING MY DIVORCE?

Getting a divorce can be physically, emotionally and financially draining for both spouses, even if they decide to have an amicable split. It’s even more taxing if only one spouse wants the divorce and the other puts a lot of pressure and effort to prevent the divorce from happening and the spouse from leaving the relationship. Couples are faced with a few choices when it comes to divorcing, including a do-it-yourself uncontested divorce, litigation with each party using individual lawyers, or mediation by using a mutually agreed upon neutral third-party mediator.

If your spouse intimidates, threatens or physically harms you enough that you feel the need to request a restraining order from the court, then mediation is not an appropriate forum for you to resolve your differences. A restraining order puts a safe physical distance between you and your spouse, so it makes a meeting between the mediator and both parties in the same room legally impossible.

Temporary and permanent restraining orders are approved only in very specific conditions in California, so it’s important for you to obtain highly qualified legal advice in order for your restraining order to be approved by the judge right away. Reasons for requesting a restraining order include domestic abuse or violence towards a spouse or their children, sexual abuse towards any member of the family, as well as stalking, threatening or harassing. Once a restraining order is requested to protect you and your children, you can also ask the judge for child custody, parenting time scheduling and child support orders at the same hearing. Having to use an attorney for this type of situation is expensive compared to mediation, but the goal is to keep you and your children safe and prevent future abuse or violence.

Having said that, mediation can be very successful if both spouses can behave civilly and one spouse doesn’t try to exert pressure over the other. The mediator’s main job is to level the playing field and offer each spouse an equal say in the discussion. By acting as a neutral third party, an experienced mediator doesn’t tell either spouse what to do or choose. Instead he/she teaches the couple how to discuss each issue which needs to be resolved, brainstorm options, and come to a mutual agreement. If no agreement can be reached on a few issues or many, then the mediator will recommend settling these in court, using individual attorneys. Overall a divorce mediator will cost you a lot less financially and emotionally than litigation and will help you obtain your divorce faster, but it’s important to understand that cooperation from both spouses is key to success.