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

In Tennessee the procedure for dissolution of marriage is pretty straightforward.  A no-fault divorce based on irreconcilable differences with no minor children involved has a minimum statutory waiting period of 60 days (90 days if minor children are involved.)  This uncontested divorce process should be completed within one year and consists of four primary steps:  1) File a petition for divorce with the  court, 2) Prepare a Marital Dissolution Agreement, 3) Agree on a Permanent Parenting Plan if minor children are involved, and 4) Schedule a final hearing in court. The procedure for a contested divorce, on the other hand, can take up to two years and beyond to finalize simply because of the filing of motions and counter motions, discovery (interrogatives, fact finding, and depositions), court ordered mediation, or multiple hearings and a backlog of court cases.

And even though a contested divorce by its very acrimonious nature takes longer to resolve, it is wise to be aware of certain mindsets and external influences that can turn a routine process into a never-ending nightmare.  Below are some bumps in the road that can derail a successful, timely divorce resolution.

REFUSAL TO COMPROMISE

An “I’m going to win at all cost” attitude doesn’t serve anyone well.  Realistically, it is probable that neither party will get everything he or she wants in the divorce.  Pick your battles, consider rational alternatives, and choose areas in which you might be willing to negotiate.  Avoid using the courtroom as an arena where you can “finger point”, out-strategize and demoralize your spouse.  Judges don’t take kindly to spousal attack, accusations, and constant bickering.

IT’S ALL ABOUT THE MONEY

Very few people find their “pot of gold” at the end of a divorce. If you reside in one of the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), both spouses are considered equal owners of all marital property, and a 50-50 split is the general rule. In a common property state such as Tennessee, the court will determine a fair or equitable division of marital property according to certain variables.  Most judges will begin by awarding 50% of the marriage assets to each party and adjust that distribution based upon evidence presented.  If you believe that your spouse is hiding assets, then you and your attorney must act accordingly.  Otherwise, an extended fight over money or ownership interest in a business is expensive and you may not be rewarded accordingly.  Years of fighting the good fight over money can eventually chew up a large percentage of available wealth.

ONE SPOUSE DRAGS FEET

An unwillingness to “let go” can delay divorce proceedings and make the process even more painful.  A less-motivated party may procrastinate in responding to motions, postpone court hearings, and reject even generous settlement offers.  At times it is prudent to step back and allow the unwilling party time to emotionally adjust.  However, eventually, the process just has to be pushed along.  Reality is that a spouse who is determined to divorce will ultimately prevail.

CUSTODY BATTLE

A custody battle is  the single most emotional reason for perpetuating divorce issues and will create havoc with the divorce process.  Hostilities escalate when one parent  or the other attempts to use the children as pawns in order to gain leverage in financial matters, child visitation, or control over mutual parenting practices. If allegations of mental illness, substance abuse or emotional/physical abuse are made in a high-conflict divorce, a forensic psychologist may be appointed by the court to do an evaluation of both parents and the children.  A judge may also utilize the services of a guardian ad litem  (“GAL”) to help determine which parent should have primary residential responsibility.  The GAL’s job is to act as an advocate for the children.  He or she will interview people who come in contact with the children, prepare a report for the judge, and perhaps testify at trial.  An independent psychologist may also be employed to help the children through this traumatic chapter in their lives.  The undertaking of experts who attempt to resolve custody battles is lengthy and expensive and can delay the final divorce decree for a significant period of time.

THIRD-PARTY INTERVENTION

One of the most insidious obstructions to an expedient divorce is the involvement of third parties.  Third parties take on many faces–they may be relatives, lovers, close friends, persons with an axe to grind, someone who is seeking a “cause d’jour”, or an individual who has a vested interest in the outcome of financial disposition, child visitation, or primary residential issues.  (Grandparents are often dragged into the fray with the best of intentions because of a genuine concern for their grandchildren’s welfare.)  Third parties may affect the outcome of a divorce by offering advice, testifying, or providing significant financial support. Many times their involvement blindsides the opposing spouse.  If a divorce drags on interminably, you should always bear in mind that the causative factor could be third party intervention.

MODIFICATIONS AND APPEALS

And just when you thought it was over—here it comes again.  After a trial has taken place and a court order has been signed that covers all the divorce issues, either party may file an a post-divorce modification or an appeal.  

Post-divorce modifications are usually filed in order to change the terms of alimony, child custody, child support, visitation, or parental relocations.  Modification may occur when there is a substantial change in circumstances  from the time that the original order was entered.  A judge (or parenting plan) will often require that the two parties involved attend mediation prior to a modification hearing.   Post-divorce modifications may be concluded expeditiously or drag on for a lengthy period of time.

A Notice of Appeal must be filed within 30 days of the trial judge’s order.  The purpose of such an appeal is to determine whether the judge made a legal error that affected the outcome of the trial.  If the appellate court reverses the original judge’s order, then the matter will likely be sent back to the trial  court for further proceedings.  The appellate process can take a year or longer to complete.

CONCLUSION

So what can you do if you find yourself mired in chaos and divorce limbo?  First, reassess your goals to determine if they are viable.  Second, be flexible and choose your battles carefully.  Third, consider the factors above that may be true impediments to divorce resolution.  In addition, and most importantly, align yourself with a skillful family law attorney who has your best interests at heart, who can offer sound counsel, and who will be your forceful advocate as you navigate through the roadblocks of divorce.  Our Cole Law Group family law attorneys in Nashville have the knowledge and experience to help resolve the most highly contested divorces. Contact us today at (615) 490-6020 to schedule a consultation.

For better or worse, nearly half of marriages in the United States end in divorce. Although the exact statistics on divorce fluctuate slightly from year to year and state to state, the residents of Tennessee are no strangers to breaking the bonds of matrimony. Throughout Tennessee, it is widely accepted and understood that issues pertaining to child custody and property division must be decided as part of any divorce. However, another extremely important issue in divorce – the issue of alimony (sometimes referred to as “spousal maintenance” or “spousal support”) – is often less certain or overlooked by parties to a divorce until it is too late, particularly if either or both of the parties have never gone through divorce before or if the divorce is unexpected.

In a broad legal sense, there are five (5) primary issues pertaining to any divorce: (1) grounds for divorce; (2) child custody; (3) child support; (4) equitable distribution of marital property; and (5) alimony. While none of these issues can be considered in isolation, the issue of alimony often predominates throughout divorce. The issue of alimony is the last major issue decided by the trial judge in a Tennessee divorce. Even if the facts of a case strongly indicate that the Court is likely to award one party alimony at the conclusion of the proceeding, vigorous litigation can ensue regarding what form the alimony should take, as well as its amount, duration, and other conditions.

Types of Tennessee Alimony

Under Tennessee law, there are four (4) main types of alimony: (1) alimony in futuro; (2) alimony in solido; (3) rehabilitative alimony; and (4) transitional alimony. See Tenn. Code Ann. § 36-5-121(d)(1).

The first type, alimony in futuro, “[i]s intended to provide support on a long-term basis until the death or remarriage of the recipient.” Tenn. Code Ann. § 36-5-121(f)(1). Alimony in futuro “can be awarded where ‘the court finds that there is relative economic disadvantage and that rehabilitation is not feasible.’” Gonsewski v. Gonsewski, 350 S.W.3d 99, 107 (Tenn. 2011) (citing Tenn. Code Ann. § 36-5-121(f)(1)). This form of alimony often turns out to be all but permanent, not usually terminating until the death of either of the parties, the remarriage of the party receiving the alimony, or the subsequent cohabitation of the party receiving the alimony with a third person after the divorce. From the perspective of the party paying a spousal support obligation, alimony in futuro is often the worst outcome; from the perspective of the party receiving it, it is often the best outcome.

The second type, alimony in solido (also a “form of long-term support”), is “set on the date of the divorce decree and is either paid in a lump sum payment of cash or property, or paid in installments for a definite term.” Id. at 108 (citing Tenn. Code Ann. § 36-5-121(h)(1)). This form of alimony is often referred to as “lump sum” alimony because it is set at a definite amount (determined at the time the parties are divorced) and is often paid by one party to the other in a single lump-sum payment. Tennessee courts frequently use alimony in solido as a mechanism to make one party pay for the other party’s attorney’s fees.

The third type, rehabilitative alimony, differs from the first two types. Rehabilitative alimony is not a form of long-term support. Rather, it “serves the purpose of assisting the disadvantaged spouse in obtaining additional education, job skills, or training, as a way of becoming more self-sufficient following the divorce.” Id. (citations omitted). The General Assembly has expressed a preference for rehabilitative alimony over the other types “whenever possible.” Tenn. Code Ann. § 36-5-121(d)(2).

The fourth type, transitional alimony, may be awarded by a court when it “finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce.” Gonsewski, 350 S.W.3d at 109 (citing Tenn. Code Ann. § 36-5-121(d)(4), (g)(1)). Transitional alimony is a form of short-term support. Generally, if a court does not find rehabilitative alimony (the preferred form) is necessary, but that an otherwise self-sufficient spouse still “needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income,” it will award transitional alimony. See id.

Alimony is Discretionary 

Moreover, and perhaps most importantly, it should be noted that Tennessee courts are not required to award a party any alimony at all. Indeed, trial judges have the discretion to award alimony and, if so, to determine what form(s) any such award will take based on numerous statutory and equitable factors. Appealing an alimony decision may be possible but is largely dependent on the specific circumstances of each case and the manner in which any such alimony decision was made by the trial judge. While this article has provided a brief overview of the main types of alimony grounded in Tennessee law, it barely scratches the surface of the complexity entailed in litigating for or against alimony awards in a Tennessee divorce. Finally, this article also does not address the important topic of temporary spousal support, another critical factor that can predominate in divorce and set the stage for how long and costly a divorce proceeding can be before a resolution is likely to be reached.

Alimony Litigation Strategy Matters

In any event, when one spouse considers alimony a gift worth litigating to receive, the other spouse is likely to consider it a curse worth litigating to prevent. Even if a divorce case contains factual circumstances strongly indicating alimony will be awarded in some form regardless of how well one party performs over the other at trial, the strategy and effectiveness of the parties in litigation can significantly sway whether the alimony award will be substantial and protracted or trivial and brief. Depending on your age, ability to earn income, profession, and many other factors, fighting for or against an award of alimony could prove critical to ensuring your economic success after the conclusion of your divorce. When divorce puts so much at stake, finding a compassionate and knowledgeable attorney to help guide you through this daunting process is paramount to protecting your rights and securing your livelihood for the future.