No One Dies from Divorce

The Truth About Protective Orders in Divorce

Jill Coil

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0:00 | 34:15

A protective order is the closest thing family law has to a nuclear bomb. In the right hands it saves a life. Used as a weapon, the fallout can level a family that was never in real danger to begin with. After almost 20 years in family law, I've watched both happen, and that's exactly why I wanted to do this episode.

In this episode of No One Dies from Divorce, I sit down with one of my senior CoilLaw attorneys, Alex Maynez, who's spent more than 25 years in family law, to talk honestly about protective orders: what they actually do, when you genuinely need one, and how they get misused in the middle of a divorce.

Alex and I walk through what a legitimate protective order actually requires under Utah law, and why a bad marriage or a heated argument isn't the same thing as abuse. We get into the cohabitant law and the case that changed it, the Taylor Frankie Paul and Dakota Mortensen hearing that played out so publicly here in Utah, and why timing, specificity, and evidence are everything.

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SPEAKER_00

Welcome back to another episode of No One Dies from Divorce. I'm so excited for this episode because we're gonna just talk about protective orders. In every state, they can be called something a little bit different. Protective orders, they can be um orders of protection. It doesn't necessarily mean, but we're talking about anything in every state in the United States, you can file for some kind of emergency protective order. So that's what we're specifically talking about. And protective orders can save lives, but when misused, they can also destroy credibility, conflict, and permanently impact families. So I'm here to talk about that with my partner in crime, Alex Maynez. Yay! Welcome to the show.

SPEAKER_01

Thank you. It's great to be here. Delighted.

SPEAKER_00

So Alex is one of my senior family attorneys here at Coil Law, and he has more than 25 years of experience representing clients in every aspect of family law, including custody, divorce, paternity, and enforcement matters. He was originally born in Chihuahua, Mexico and raised in California. And Alex graduated cum law from the University of Southern California before earning his law degree from BYU. Throughout his career, he has been deeply committed to serving families and protecting children during some of life's more difficult transitions. Thank you, Alex. And just a little tid tidbit, I should say, is that me and Alex are big true blue cougar fans. We're big BYU fans. So we we like to have a little bit of fun at the office, and it's kind of fun to have another guy that is super, super um BYU and loves all things sports. So, anyways, Alex, welcome to the show. I'm excited to talk about protective orders today with you. So we want to talk about protective orders today, Alex, because we want to talk about that real victims deserve protection, but faults or tactical filings are actually really harmful. And obviously, these cases are emotionally and illegally explosive. So a protective order is one of the most powerful tools in family law. In the right situation, it can provide immediate safety and protection. But in the wrong situation, it can escalate conflict, destroy credibility, and permanent alter a fine family dynamic. It is what I say is the nuclear bomb option in family law. Sometimes it's absolutely necessary, but once it's used, the fallout can change everything. And the truth is courts are seeing both. Alex, why don't you talk about what protect what protective orders actually do?

SPEAKER_01

So yeah, you're right, Jill. The uh that's extraordinary legal power when we're dealing with protective orders. We throw out the window the Fifth Amendment about due process for just a little bit. The moment a protective order is issued, the respondent can be removed from the marital residence. You're can be restricted to having contact with the petitioner and the children. Of course, it impacts custody and restricts firing on possession. And here in Utah, that's a big thing because a lot of people are hunters. They don't want anybody taking away their guns. It could affect your employment, uh, your reputation. And of course, there's criminal consequences if you violate it. And protective orders are pretty quick, and a lot of people don't realize how immediate the consequences are.

SPEAKER_00

Absolutely. And that's why we want to talk about it because it's not that we want to discourage anybody from getting a protective order. Because if you need protection, if you are in an abusive relationship or things have reached to the place where they are abusive and you are scared for your safety, we want you to get protection. That's why these ex parte protection protective orders, and that's what Alex was alluding to, it meaning they're signed without ever hearing the other side's side of the story. And so they're done without due process. And almost always those are going to be signed. And the reason why is because the court would rather sign 99 innocent protective orders than miss the one that they should have signed. So we're here to tell you we're advocates of them and we want people, especially victims, to be protected. But let's talk about what a legitimate protective order means, right? In Utah, and again, I'm licensed in Utah and Texas, so we're just talking about Utah protective orders. It's very, very similar in most states, but the laws could change depending. So please know this is Utah Protective Ord. You have to prove, first of all, that there's a qualifying relationship. Cohabitants. So under Utah law, the parties generally must qualify as cohabitants, meaning they were married or divorced, they're separated, living together. It can be if they've had a child together, can be related by blood or marriage in an intimate relationship, meaning just dating, otherwise fit Utah statutory definition. So used to be, Alex, you're you remember this because the laws changed in the last several years that you actually could only get a protective order if you were married. And there was a case up at the University of Utah where uh a young woman was stalked by her boyfriend and then eventually um murdered. And she had notified campus police and it it just kind of went on deaf air. And that her parents pushed legislation to now get to where you just have to meet a cohabitant. So now if you fit any one of those, you can now apply for these civil protective orders. Now, they usually are used in commonly arising like divorce or custody, dating violence or separate situations. So, Alex, talk about what kind of abuse or domestic violence is looked for when asking for a protective order, or if you're thinking about maybe I need a protective order.

SPEAKER_01

Yeah, so the uh the quintend abuse act requires a showing that uh domestic abuse has occurred or substantially likely to occur. And that's that's a standard. Uh not that my spouse is being difficult or things are tense or my spouse is gaslighting me. There has to be actual or imminent harm, physical violence, strangulation, intimidation, unlawful detention, and uh even emotional abuse is tied to threats or control, or there's been destruction of property or stalking and or some other coercive conduct that puts the other party in fear.

SPEAKER_00

Yeah, and not every bad marriage or heated argument qualifies legally. So we want we want to talk about that, and it doesn't necessarily mean that they have to put their hands on you. That's why we said emotional abuse tied to threats or control. If they text you something that says, I'm going to, you know, do something bad to you, that could raise to the level of a protective order needing to. And I think it's really important for us, Alex, to talk about the immediate danger or likelihood of future abuse. In Utah, you actually don't have to show that you're in immediate danger, meaning the threat is right there if this isn't signed. You can't actually show that there's a likelihood of this future abuse. So for an ex parte protective order, the court typically looks at like, is there imminent danger? Is there reason it reasoned abuse? But then they can look at is there escalating conduct, credible threats or ongoing fear supported by facts? Um, and that's why it's really important. Like timing matters, specificity matters, and evidence matters. One of the things we see a lot, Alex, is people are like, oh, this happened two and a half years ago, and now we're getting divorced. You know, does that raise to the level of a protective order? And we always have to use the word depend, you know. I I know that that's what attorney says, but it depends. Like, was that a pattern of abuse that happened two and a half years ago that is now leading or showing patterns that it could escalate to that level? If it is, then yes, even if it's two and a half years ago, it can be then used, you know, as reasons for a protective order. I think the most famous and infus, infamous protective order that people are all talking about right now in the state of Utah is Taylor Frankie Paul and Dakota Mortensen. And, you know, those that Taylor is Alex is probably like, who we are, those people, but uh Taylor is on the Real Housewives of Mormon Wives and Dakota Mortensen. But they they had mutual protective orders. Commissioner Minas allowed the public to watch the entirety of the hearing. So it's been talked about a lot. And a lot of people talked about how the supposed abuse from Taylor happened years ago. But the statute's clear, it doesn't matter how long the abuse was. Is it escalating now? And is that a pattern that is making it so there's more likelihood of future abuse? So we want to just make that clear. Alex, why do protective orders even exist?

SPEAKER_01

Well, everybody knows uh that the judicial system is as slow as molasses. Yeah. Takes forever to you know get a hearing, get something before the judge. Protective orders, they came along because of the emergency nature. Something had to be done right away, immediately. If somebody somebody uh fills out the the forms to get the protective order, usually they'll get that before the judge the same day, the next day, and then the judge will sign it, and then it's it's set, and that's the order. And so in emergency situations, you need that kind of speed. You have to get that protection for for that individual as soon as possible.

SPEAKER_00

Right.

SPEAKER_01

And of course, that's it's just a piece of paper that's signed by the judge. The person who is looking for that kind of protection does need to have some kind of a safety plan, you know, until that individual is actually served with that protective order. He may not know about it and show up, just innocently shows up, but yeah.

SPEAKER_00

One of the things about an ex parte protective order is when it's actually filed and then signed in Utah, it's uploaded to what's called statewide immediately. So even if the the document's not technically valid or enforced until it's served on the other party. However, statewide is accessed by all of the police agencies in all of Utah. So even if he hasn't been served and it's been uploaded to statewide, if you, you know, see your spouse or whatever, it a 911 call saying I have a protective order, they're going to be able to see it, is immediately going to get you help from the police agencies to come and hopefully, you know, offer protection. So that's why it's it's a very strong, in fact, it's the only way that other than like an Amber Alert, where every agency gets notified or has access to this document to offer protection. So with that, it's a very strong way of getting you protection, even though I agree, Alex, it's it's just a piece of paper. It's not going to stop a bullet from hitting you. And we'll talk a little bit about that. There are situations when filing a protective order is the safest and most necessary thing that we need to do. However, we see this a lot, but there is tactical or misuse protective orders. So, Alex, can you kind of talk a little bit about why somebody would want to misuse a protective order?

SPEAKER_01

Yeah, so a tactical order is one that's not filed for safety, but it's uh for a strategic advantage to to gain leverage perhaps in the divorce, to get temporary custody, or just to get somebody out of the home right away, uh, but also to maybe to create a narrative advantage in the divorce. Or sometimes people will just simply out of anger or panic they file out. And so these are the the strategic or tactical reasons that that people use protective orders, but they can come back and bite you. It's uh it's it's like I said, it's a like you said, it's a nuclear bomb, and the fallout could be you know pretty pretty substantial.

SPEAKER_00

And let's talk about that because what happens in Utah when an ex parte protective order is filed and signed by the judge, an automatic hearing is scheduled for at least 14 days after the signing of the protective order. Sometimes it I think it has to be within 14 days or 21 days, but fairly quickly you have to have a hearing on your ex parte protective order. And that's when, at that hearing, when your Fifth Amendment rights go into play, because the person being served with the ex parte now has the opportunity to bring their side of the story, to ask the court to dismiss it and explain why they don't believe that the elements in the protective order are true, or maybe they are true, but do not rise to the level of a protective order. And at that hearing, what do you think the statistics are? I mean, these aren't publicly known, so it would be us as as attorneys just kind of guessing. But I would think 80% of protective orders get dismissed at that hearing. What what's your number? Do you think I'm high?

SPEAKER_01

No, I think I would tend to agree with that. Yeah, the majority of the protective orders, uh, you know, like I said, the initially they're just filed out of emotion or anger or panic, but then when they get to the actual hearing, you know, everybody has their moment in court and they're able to explain their sides. And most of those, yeah, don't rise to that level of having to have a permanent protective order.

SPEAKER_00

A lot of times we get we go to those hearings and they stipulate to dismiss it. Sometimes they've filed for divorce or paternity, and so they they agree that they'll just do some orders in that and they don't need a protective order. I I think even less, like even like argue the protective order. A lot of times they come to agreements. Sometimes they agree to enter the protective order as a no-fault protective order, meaning, and and you're like, well, why would somebody agree to a protective order but no fault? Well, that means there's no findings of abuse that were made to grant the protective order. So if you have criminal charges pending and you don't want to defend yourself because you're pleading the fifth in your criminal, which anything you say and do in your protective order can be used against you in your criminal, sometimes you'll just admit to the protective order but doing no fault. So there's lots of different things that you can do. But yeah, I agree. Like most of them get dismissed. And the reason why there can be immediate effects because the ex parte, like you said, can kick you out of somebody out of the house. They're out, they don't haven't seen their kids for a couple weeks because the protective order forbid that. But then all of a sudden it's dismissed. Then what? Like that person gets to come back in the home. That person gets to come, you know, and see the children, and which can be a really, really hard situation. Obviously, is not going to be what we as attorneys would say strategically a good situation. I mean, it could, it could really end badly. And so you want to look at that kind of you don't want to look just at the short term. You want to understand like the long-term ramifications of filing this protective order as well. And and obviously by filing it, especially if you're doing it as a tactical or strategic way, I guess we should say that some people will file a protective order strategically because they want the person out of the house. Or, like you said, it takes it the courts are molasses, so it takes so long to get into court, you think you're gonna get immediate orders. So there are different reasons and tactical reasons people do file the protective orders, but at the end of the day, then if it's dismissed or the court's like, we're not going to continue this, then what? Right? So there are risks and it could definitely backfire on you, right, Alex?

SPEAKER_01

Yes, yes. And I'm I've I've got a very good example of one of the cases that I dealt with that uh this backfired on on the opposing party. The petitioner alleged sexual conduct while incapacitated. She claimed she was drugged. There was some physical evidence. There was actually an audio recording of the party's interaction. And of course, they said that this was suggesting that that she was in pain and and did not give her consent. And she complained also of ongoing unwanted contact after she left. And so the ex parte standard was met and the order was appropriately issued. But then at the full at the ex parte hearing, at the full hearing, I'm concerned, we presented numerous exhibits where we documented uh this pattern of behavior of this individual where she would break up and then they would get back together again. She we showed uh medical her medical condition regarding her, you know, just she just fell asleep uh in the middle of the room, you know, for no reason. Fatigue and side effects. And uh we also provided the context for the audio recording and what the sounds were, and then we showed evidence about the my client's work schedule that there was no way that he could have administered any kind of drugs. But the commissioner, she heard that tape, the audio, and she just said, I have grave concerns. And so she continued that protective order and got the uh and wanted to wait until what happened with the criminal case because there was also a pending criminal matter, assault and things like that. So actually on this one, this one was one where it was uh appropriately entered. In the meantime, yeah, he was prohibited prohibited from contacting her, from communicating with her. Because he was he he was he were contacting her quite a bit, and it was just to the point where, yeah, that was kind of harassing. And so that protective order kept him away, and then we were able to wrap it up with with the with uh with the divorce.

SPEAKER_00

Who did you I I think I'm confused. Who did you uh represent in that the woman? Did you file the protective order? Or you were representing him?

SPEAKER_01

We represented him, she filed it pro se.

SPEAKER_00

Okay.

SPEAKER_01

We tried to get um an agreement, but uh she wouldn't want anything to do with that, and so we had to keep going. Eventually it was it was uh the commissioner highly recommended you know what, just put mutual restraining orders in the uh divorce, and then we'll be done.

SPEAKER_00

Is that what ended up having happening?

SPEAKER_01

Yeah, so they just just put mutual restraining orders in the divorce, and then that that divorce was entered, and they never saw each other again.

SPEAKER_00

And that's the other thing is is with the protective order. I mean, if you get a permanent protective order, they're good for years, depending on you know what they're entered on. Um, but sometimes it's just you know, you need it for the 90 days or the six months that the divorce is going so that we can kind of get through the emotional part and then get to the brass tacks of just getting you separated. Because once you're separated, you know, the goal is hopefully you're safe. Clearly, you know, marriages don't healthy, happy marriages and relationships don't end in divorce. They always end at the lowest um pinnacle of their of their point. And so it makes sense that sometimes it just requires staying away from each other, stop entering into the cycle that you guys have been in, and and let's get you separated so that you guys can move on. A lot of things with tactical, like with tactical filings and why they backfire, because credibility is usually damaged. Like the judge is skeptic, you know, they impact on future custody arrangements, they escalate litigation immediately. They also increase attorney fees, like people don't realize that, but they're you know, they're not cheap to file. You have to go to court hearings. A lot of times you have to go to multiple court hearings. They're also really emotional for children, especially if you know one's granted and it completely uh denies the other parent to see the child or children. So it could be really, really hard.

SPEAKER_01

Yeah, so I regarding the credibility and the effect on the kids, uh, I have this other case that I was involved with where the wife she was a professional worker in a mental health facility, and she filed a request for a protective order during uh a highly contested divorce. It was three kids. She alleged years of emotional abuse, wall punching, that the husband had a mental disorder, and that he had brandished the firearm. And so, of course, the ex parte order immediately issued on the face of those allegations.

SPEAKER_00

Right.

SPEAKER_01

But what happened to the hearing was able to explain that the damage to the home yes, there was a criminal matter, but that criminal matter was dismissed. And the wife had omitted that. Um and then her mental health allegation, which he was able to bring in mental health records, and it showed that what she had claimed that he had was not. And being a licensed mental health professional, you know, she shouldn't be throwing those terms around because she knew the difference.

SPEAKER_00

Right.

SPEAKER_01

And the parties had been uh co-parenting for about five months, where she had voluntarily allowed the dad to have you know four overnights a week. This is about five months period.

SPEAKER_00

And then she filed the protective order?

SPEAKER_01

Yeah. So they started arguing about the upcoming Christmas vacation. So apparently Thanksgiving didn't go too well. But then the the parties got together and they agreed that he was going to have Christmas for a certain period of time. But then later on, she came back and says, No, you're not going to get the kids on Christmas. And so he became really upset. What he did is he went and filed a complaint with the licensing girl. And then she found out about it. And then she wrote him a text that explicitly said are connecting the fear to that complaint that he filed. And that was the reason that she filed the protective order. So then, yeah, so this was on December 22nd. And of course, my client wasn't able to see the kids on Christmas because she filed that protective order. And at the hearing, the commissioner just saw right through that that this was just a tactical strategy for her to try to get gain this advantage. And so the court, what she did, the commissioner said, I'm going to deny this protective order. And then she did, she said the court, meaning on their own initiative, she consolidated the protective order case into the divorce, and then she issued temporary orders giving them joint custody, equal overnights, details on how they're supposed to communicate, mutual restraining orders, child support, and housing order.

SPEAKER_00

So so tactical on her place, but it actually ended up being a very tactical good tactical maneuver on your client's position. Yeah.

SPEAKER_01

So yeah, her credibility is shot, and uh, you know, whatever she says from now on, you know, not gonna believe her.

SPEAKER_00

So yeah, it's and that's the thing, is that we want to make sure people understand, like, and our courts are already bogged down, they are already overextended, under you like overutilized, because the hardest part is that both our overfiling and underfilings can be devastating consequences, and that's why this topic is so like we have to be careful, right? Because again, we don't want to discourage the people that actually need a protective order. But sometimes I feel like those people, their cases actually go unheard or get dismissed because the courts are overwhelmed by all the protective orders that people are filing tactically. And that's what we want to be very clear about. And also, one important thing that I really need people to understand is that protective order is still ultimately just a piece of paper. It is an important legal tool and it can create boundaries, consequences, and immediate intervention from law enforcement. But if someone is truly dangerous, a court order alone may not physically stop them. So if you generally feel for your safety, you need to take that seriously. You need to call the police, tell trusted people what's happening, create a safety plan, protect yourself and your children because the legal system can help, but personal safety awareness matters more. So I wanted to just talk a little bit about strategy considerations for our clients hearing. Like, you know, before filing, an attorney is going to evaluate is there evidence? What's the timing? Is there prior history, witnesses, text messages, escalation patterns, child involvement, and then immediate safety concerns. So if an attorney is going to consider that, then we want you to hear that. You should be considering that as well. Do you have these things? I tell everybody, if you're being, it's never okay for somebody to physically hurt you in a marriage. Ever. It's not okay for somebody to throw something at you, whether it hits you or not. Those are instances that are not okay. And so you need to know that and you need to be prepared. Like if that is happening to you, we want you to get help. Call the police, report it, talk to somebody about it, so that when you come to your here, you know, your consultation with me and you're like, these things happened, you're like, and here's my evidence of it. We're going to put it together, we're going to put it in a protective order, we're going to go get you that protection because you we know you need it. We know that you meet the elements. It's not going to be just looked at as some kind of strategic proposition that you're you're wanting to do for leverage in the divorce. Okay. And then ask yourself these questions. Is this about protection or is it about leverage? Is there imminent danger? What happens after filing? And then how will this impact the children? I do want to point out you can file a protective order without putting your children on it. So if you need protection because the abuse is against you, you can do that. You don't have to put your children on the protective order if you have not seen the escalation or the abuse transferred to your children. Alex, let's talk about the emotional side that obviously everybody that's listening to this is kind of thinking, like, oh, this is so emotional, this is so heavy. So let's kind of talk about it, about what a protective order sometimes involves.

SPEAKER_01

Yeah, I mean, it's a it's a uh there's so many different things happening at the same time. Shame, the fear, emotional trauma, humiliation, and then the uh the public exposure that's gonna occur for because of this. And so it's it's it's it's it's a highly tense situation for both sides, and uh and you get to the point where neither one wants to give in. But you gotta remember that you know there's gonna be, and this is what people don't really anticipate or think about, you know, there's social or reputational damage that outlasts this legal proceeding. And then, of course, the effect on the kids, they absorb that fear, confusion, the divided loyalties, and instability. Even even if a protective order is denied, it still creates a narrative that circulates in in social networks and amongst and within the family.

SPEAKER_00

And not only that, like children are not aware, like they're not part of the system. Like Utah courts are not gonna call the children in to talk to them. They'll they'll assign maybe a garden at Lightham and the Garden of Lightham, but they don't get to have their voice in court. And so when this happens and all of a sudden they're pulled away from another spouse, it is very confusing for them. And it does. I Alex, I completely agree with you. It sets a narrative. Oh, my dad can't see me because my dad's a bad guy, or you know, my mom can't see me because my mom, you know, whatever. They finish the sentence because nobody else is finishing the sentence for them, or the parent is finishing the sentence in the way that they want the sentence to be to be filled. And so you I think a lot of people forget about the the great effect that it does have, and it should be protective orders involving children should never be treated casually. So, Alex, what do you think the biggest misconception about protective orders are?

SPEAKER_01

I think it would be the uh I think we mentioned it before that uh people miscon the misconception is that filing guarantees protection. Again, the the protective order is just a piece of paper, and if someone is truly dangerous, you also need a safety plan.

SPEAKER_00

Another thing that I see misconception is like, oh, I'm gonna file protective order, but I'm not gonna file for divorce, or I'm not gonna file paternity. That is fairly confusing to me. I feel like that is two reasons two ideas that that are completely in opposite of each other. If you are planning on filing a protective order because you want this person to be away from you, in my mind, a divorce needs to be going forward so that we can actually keep this person away from you. Protective orders are temporary. And if you're married to this person, filing the protective order, I don't think is going to help anything in this situation. It's not gonna get that person therapy, it's not gonna get you therapy, it's not gonna get you resources. I think a lot of people think, oh, I'll get resources through the state. Uh, it's not, and so you're gonna be just left, I think, with a very miss inopportunity to fix whatever is going on because the justice system's not gonna give it to you.

SPEAKER_01

Yeah, I mean, if if uh the the the Utah courts.gov website is an excellent resource for obtaining those uh those those uh forms. And most of the people they they filed it without an attorney. So if you file one, it's okay to file it without an attorney. But if you are having to defend one, you definitely need an attorney because you know the the the damage is gonna be you know pretty extensive, and if you if you don't do it right, then you know it could affect the rest of your case. Talk about a little bit about the evidence. You gotta have real good evidence, like text messages with dates and times, police reports. If you're able to contact law enforcement and get them involved initially, I mean most of the time they'll be the ones that'll tell you, yeah, you should file medical records and great photos of any injuries, keep voicemails.

SPEAKER_00

In Utah, you could record as well. It's a one-party consent state. So in Utah, you if you're part of the conversation, you can record, but you have to make sure that that's Utah is a one-party consent state, but the state you're in may not be that. California is a two-party consent, so you cannot record somebody without letting them know.

SPEAKER_01

Those are those are helpful, not in and of themselves, but in connection with the other, you know, the past incidents of abuse or the eminency of requirement that you know, is this something that's gonna likely happen? And so when you have that kind of evidence, that that's really helpful. The long-term impact is uh you know, filing a protective order that can establish a pattern of things. A denied protective order can establish a pattern of bad faith. So we've got to be careful with that. You know, use them when the law and the facts support them. That's a standard, and that's also the protection for yourself, for the process, and for your kids.

SPEAKER_00

Absolutely. I agree. Protective orders exist to protect people from real danger, and they're an incredible important legal safeguard. But because they are so powerful, they must be approached carefully, honestly, and strategically. And used appropriately, they can provide safety and stability. Used improperly, they can escalate conflict and create lasting damage for everyone involved. Thank you, Alex. I think this was really powerful and I hope it was helpful for our listeners. I so appreciate you joining me today.

SPEAKER_01

Thank you. It's great. Appreciate it.

SPEAKER_00

That's another episode of No One Dies from Divorce. I hope you download us on all streaming platforms. Go ahead and hit that subscribe button on YouTube, and we hope to see you at our next episode. Thank you.