Everyone has a right to be free from unwanted physical contact, threats, or stalking, and yet, all too often a person in the middle of a divorce experiences these heinous acts at the hands of their spouse. When this happens, what can one do to keep themselves safe? Are they continually at the mercy of their abusive spouse? This article will explore what a divorcing spouse can do when things are not safe at home.
What is an Order of Protection?
An order of protection is an order issued by the court to protect an individual in a situation often involving alleged domestic violence, child abuse, assault, harassment, stalking, or sexual assault. In the context of divorce, an order of protection can provide immediate safety for victims of domestic abuse or threats of violence from a spouse. The court’s aim is to prevent harm in the future and create a safe environment for the victim.
How to Get an Order of Protection?
To obtain an order of protection in Tennessee, an individual must file a petition with the court alleging that they are a victim of domestic abuse or that they have a reasonable fear of imminent harm from a spouse or ex-spouse. When the petition is filed, it will be reviewed by a judge who will decide whether a temporary order of protection should be issued or not.
Next, the respondent will be served with the order of protection and the case will be set for a hearing within 15 days. Both parties will have the opportunity to present their case at the hearing. In order for the order of protection to remain in effect, the petitioner must demonstrate by a preponderance of the evidence that he/she is a victim of domestic abuse or that there is an imminent threat of harm.
For example, in the case of Honeycutt v. Honeycutt (Tenn. App. Mar 06, 2016), the petitioner requested an order of protection during a divorce process due to her fear of being abused by her spouse based on past incidents of abuse. Finding this as good cause, the court issued Ms. Honeycutt a temporary order of protection for 45 days.
What Happens to an Order of Protection During a Divorce?
Pursuant to Tennessee Code Annotated 36-3-603, if an order of protection is in effect at the time the petitioner files a Complaint for Divorce, the order will remain in place until the court in which the divorce action is assigned either modifies, dissolves, or extends the order in accordance to the divorce. Therefore, if the threat of abuse or violence persists after the divorce takes place, the victim can be provided relief by making the protection order a part of the divorce decree.
Relief and Penalties
The types of relief that the victim can receive from the protection order include prohibiting the abuser from contacting or coming near the victim, requiring the abuser to vacate shared property, establishing the financial obligations of the abusive spouse, and granting temporary custody of children to the victim. Furthermore, orders of protection are issued by a court and are legally binding, and violation of the orders as supported by Tennessee Code Annotated 39-13-113, can result in criminal penalties including fines and imprisonment.
While orders of protection can provide a sense of security, they may need to be supplemented with other legal measures such as custody arrangements and restraining orders incorporated into divorce orders to help provide long-term safety and resolution.
If you are not safe in your home, contact the police. If you decide that you need to file an Order of Protection, you can get more information here. If you need an attorney to go with you as you prosecute or defend yourself in an order of protection case, please contact our office to speak with a seasoned attorney about your options.
DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.