If you fear for your immediate safety or are in danger due to domestic violence, do not wait—call 911 right away. Law enforcement can intervene to ensure your protection and help you access emergency resources, such as shelter or medical care. While seeking an Order of Protection is an important legal step, your first priority should always be your immediate safety and the immediate safety of your children. The police can also assist you in filing for an Order of Protection once you are safe. If you are ever unsure about your safety, don’t hesitate to call for help before taking any legal action 

Divorce can be a challenging process where emotions are heightened, especially when it involves concerns about safety or abuse. In Tennessee, one tool to ensure the safety of a party during a divorce is petitioning the court for an Order of Protection. For individuals in need of immediate legal relief from domestic abuse, stalking, or threats of harm, an Order of Protection offers crucial protections. 

What is an Order of Protection? 

An Order of Protection is a court-issued document designed to prevent an abuser from continuing harmful behavior. The Order of Protection can grant various protections, such as prohibiting the abuser from contacting or approaching you, giving you exclusive possession of your residence, awarding you temporary sole custody of minor children, ordering counseling or financial support, directing the care of pets, etc.¹  

However, these protections do not go into effect until the abuser has been served with a copy of the ex parte Order of Protection.² Once they have been served, if your abuser violates the order of protection, they can be arrested. 

Who can file for an Order of Protection? 

In Tennessee, any domestic abuse victim, stalking victim, or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, sexual exploitation of a minor, sexual assault, or a human trafficking offense may file for an order of protection.³ 

It is important to note that anyone who has experienced sexual assault or stalking may file for a Petition for an Order of Protection, regardless of your relationship with the perpetrator.⁴ However, in order to meet the statutory requirements for an Order of Protection for domestic abuse, there must be a relationship between you and the abuser, i.e. current or former spouses, people who live together or have lived together in the past, people who are dating or have dated, people who have had sexual relationships with the other, relatives by blood or adoption or previous marriage, etc.⁵ 

Under Tennessee law, there are four categories as to what can constitute domestic abuse⁶ that would warrant an Order of Protection: 

1. Purposefully physically hurting or attempting to hurt someone physically (accidents do not count)  

2. Making the person fear physical harm or physical restraint, or physically restraining someone 

3. Maliciously damaging someone’s personal property 

4. Intentionally financially abusing⁷ someone, meaning behavior that is coercive, deceptive, or that unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which the person is entitled 

1. This includes using coercion, fraud, or manipulation to restrict a person’s access to money, assets credit, or financial information; unfairly utilizing a person’s economic resources to gain an advantage; or exerting undue influence over a person’s financial behavior or decisions, including forcing default on joint or other financial obligations, etc. 

How to File for an Order of Protection? 

To request an Order of Protection in Tennessee, a person must file a Petition for an Order of Protection in the county where the abuser lives, the county where the abuse occurred, or the county in which you live if your abuser lives outside of the state of Tennessee.⁸ It is important when filing to give the court as much information as possible regarding what you have experienced.  

Each county has slightly different procedures for filing a Petition. Generally speaking, this can be done at the county’s General Sessions’ Clerk’s Office. If it is after hours, your local police should be able to assist you in filing your petition. You can also retain an attorney and request that they file a Petition for an Order of Protection on your behalf. 
 

Should I wait to request an Order of Protection until after I have filed for a divorce? 

An Order of Protection can have significant implications during a divorce, particularly in cases involving children. If children are involved, the court may take into account any history of domestic violence when determining custody and visitation. Generally speaking, the longer you wait to file an Order of Protection, the more likely a judge will question why you waited. However, there are pros and cons as to when you should decide to file for an Order of Protection, and a skilled family law attorney can help navigate the complex process and protect your rights. 

Should I retain an attorney? 

Whether you are seeking an Order of Protection or defending yourself against one, retaining experienced legal counsel is critical. The stakes can be high in divorce cases, and this is especially true when domestic violence or allegations of abuse are involved.  

Additionally, it is important to note that statutorily, if you are successful in obtaining an Order of Protection, the Court will also order the abuser to pay your court costs, filing fees, litigation taxes, and attorney’s fees.⁹ 

If you’re considering filing for divorce in Tennessee and have concerns about domestic abuse or harassment, do not hesitate to seek legal advice. An Order of Protection may be an essential step in protecting yourself and your family.  Schedule a consultation with a trusted attorney today to discuss your case and explore your options. Taking this crucial step can help ensure that you have the support and guidance necessary to navigate the legal process and protect your interests. Contact Cole Law now at 615-490-6020. 

1 T.C.A. § 36-3-606

2 T.C.A. § 36-3-611

3 T.C.A. § 36-3-602

4 T.C.A. § 36-3-601(11)-(12)

5 T.C.A. § 36-3-601(5)

6 T.C.A. § 36-3-601(1)

7 T.C.A. § 36-3-601(6)

8 T.C.A. § 36-3-602(c)

9 T.C.A. § 36-3-117

How do I get my ex to move out?

Legally speaking, I cannot recommend you harass your ex or engage in any threatening or harassing behavior to remove them from your home. Engaging in such behavior may have negative legal consequences. However, there are legal ways to get your ex to move out.

Breaking up is never easy, and when you live under the same roof as your ex-partner, it can make a difficult situation worse. If you can no longer co-exist in the same space, finding a way for your ex to move out peacefully and legally is essential to maintaining your own well-being as you begin the next chapter of your life.

Is their name on the lease/mortgage/deed?

If the answer is no, they do not legally have a right to be there. However, this does not mean you can simply change the locks the next time they leave the house or throw all their belongings onto the front lawn. You must serve a written eviction notice and let them know they have thirty (30) days to remove themselves from the residence.[i] Make sure you keep a record of how the written notice was communicated to your ex.

If they still refuse to vacate the premises after the thirty (30) day deadline has passed, you will need to seek court intervention for an order of eviction. I will say this again, you cannot simply change the locks the next time they leave the house and throw all of their belongings onto the front lawn. If you choose to engage in such behavior, you may be liable for any damages sustained by your ex or their property, punitive damages (damages meant to punish you for your behavior), and reasonable attorney’s fees.[ii]

If the answer is yes, depending on the terms of your lease or housing agreement, you may still have options to remove them legally from the property. Carefully review the terms and conditions of your agreement. If there are provisions that address what would happen in the event of a breakup, be sure to follow those guidelines. If there are no such guidelines, consider discussing this matter with your landlord or a legal professional who can help you navigate towards a solution.

You may also want to consider offering a financial incentive for your ex-partner to move out.  Offering a financial incentive can include helping with moving expenses, covering their first month’s rent, or assisting with a security deposit. However, if both of your names are on the mortgage and/or title of the property, they will likely want a larger financial payout to incentivize them to be the party that moves out. Legal counsel can help negotiate a settlement offer and ensure all related matters are taken care of. You do not want to be in a situation where you gave your ex a large amount of cash and they refuse to take their name off the property.

While discussing moving out, it is also crucial to establish a clear and reasonable timeline for your ex to leave the residence. Being open to negotiation and compromise can help facilitate this process. Be sure to take into account practical considerations, like the time needed to find a new place. Having a set deadline can provide you with closure and leave a light at the end of this breakup tunnel.

My ex wants me to move out. Do I have to leave?

If your name is on the lease or deed, then you have a legal right to continue living at that property.

If your name is not on the lease or deed, you may not have a legal right to continue living on the property, and your ex may evict you. The answer may differ if you and your spouse entered into a cohabitation agreement prior to moving in. If this is the case, it may be worth seeking legal counsel to review the enforceability of your agreement.

If there is no such agreement in place and your name is not on the title to any of the property, a court will likely have a difficult time awarding you any of the “shared” property. However, this does not mean that you are necessarily out of options. If you have been the one making these payments, you might consider asking your ex to move out and transfer the property into your name. If they are financially dependent upon you, they may be willing to negotiate an agreement to sell the property or have you take over the lease. You should consider speaking with your landlord or an attorney to review your lease prior to solidifying any agreement.

We are still married… can I get them to move out?

Maybe.

Depending on the circumstances, you may be able to request the court enter an order for exclusive use of the marital residence while your divorce is pending. Courts generally do not like kicking a spouse out of their home prior to a marital dissolution agreement or final decree being entered. Why? Because parties have a tendency to want to move things along while forced to live with a spouse during a divorce. When one party is awarded the marital residence, it can disincentivize them to want to continue to work towards a resolution. This is especially true when the marital residence is the only major asset that needs to be divided.

However, in cases where you are able to show the court that there has been emotional or physical abuse, the court may be inclined to award you exclusive possession of the marital residence while the divorce is pending. If you believe this applies to you, you should consult with a knowledgeable Nashville divorce attorney.

Throughout this process, it is essential to respect your ex’s rights. Do not engage in any behavior that could even remotely be considered harassment or coercion. Be mindful of their personal space and privacy. Getting your ex to move out legally and peacefully is a challenge that requires open communication, respect for their rights and adherence to the law. The professionals at Cole Law Group have the knowledge and experience to guide you through this process and any questions you may have along the way. Please contact us at (615) 490-6020 to request a consultation.

[i]  T.C.A. § 66-7-109

[ii]  T.C.A. § 66-28-504