Category Archives:Family Law

The Difference Between A Restraining Order & Order of Protection

In Tennessee there are two options when it comes to seeking protection from physical abuse, threats or harassment. They are both similar in whom they protect but each have different requirements. Both orders are issued by the court and civil in nature, but violations are punished as criminal contempt of court.

An order of protection orders the abuser to cease all contact of any kind with the victim for a period of one year. This includes phone calls, text messages, emails, and any form of social media or through a third party. In most cases this order is filed to prevent any further domestic violence and harassment. The victim must have either been in a romantic relationship, lived with or be related to the abuser. There are exceptions for sexual assault and stalking in which case no relationship is required. If you do not have one of these relationships or exceptions thereto then you must file a restraining order instead.

When an order of protection is filed, the Court will normally issue a temporary emergency protection order valid for 15 days, without a hearing. The order of protection is then served upon the other party and the case is set for hearing. If after a hearing on the issues, the Court finds that there is sufficient evidence to grant the order of protection then the Court puts down an order valid for 1 year. If the abuser violates either order of protection, they may be sentenced up to ten days in jail and in some rare circumstances charged with a criminal misdemeanor where the punishment increases significantly.

A restraining order is a court order that orders the abuser to cease all contact with the victim. This also includes phone calls, text messages, emails, forms of social media and third parties. A restraining order is typically issued to protect a person who is considered to be in imminent danger or irreparable damage is likely. Unlike an order of protection, you do not have to be related to or romantically involved with the abuser to file a restraining order. In certain cases this type of order can be used to prevent a parent from moving children from one county to another and place temporary holds on bank accounts. Once ordered by the Court the order is generally valid for 10 years, as opposed to 1 year for an order of protection.

It is also important to understand that unlike an order of protection there is usually not a temporary emergency order and you must wait until after the Court hearing to have any protection.

Violations of restraining orders are punishable as criminal contempt in the same manner as the order of protection, but violations cannot be charged as misdemeanors.

In either case it’s best to hire an attorney to help navigate through the process. Legal documents can often be tricky and difficult to understand. An attorney can help guide you with the necessary details needed to get the order approved.

What Is an Order of Protection?

An order of protection (also referred to as an OP) is type of restraining order issued by a court that’s designed to primarily protect people from domestic violence.  To file an order of protection you must be related to, have lived with, or been in a romantic relationship with the other person.  However there are exceptions for stalking and sexual assault and no relationship is required between the parties in those instances.  If you do not meet these requirements but still feel that you need protection you may be entitled to a restraining order instead of an order of protection.  An order of protection orders one person not to have contact of any kind—including contact via emails, phone calls, text messages, social media, or in person another person for a period of 1 year.

Who needs an order of protection?

If you are being hurt, threatened or harassed by a relative or significant other, you may need an order of protection to help keep that person away from you.

What happens if someone violates an order of protection?

If someone violates an order of protection, you have the right to notify the police, who can then arrest that person. Violations constitute contempt and carry up to 10 days in jail per violation. Although rare, a violation can be charged as a crime under some circumstances—not contempt—and carry up to 11 months and 29 days in jail.

How do I request an order of protection?

It is best to hire an attorney before you file for the order of protection.  However in the event that you cannot wait as you need immediate protection, you can go to the Court Clerk or magistrate in the county where the problems occurred and file for an order of protection.

After you file for an order of protection, a judge or magistrate will review your request. If the judge finds there is probable cause, he or she will issue an ex parte order of protection that’s valid for 15 days. The ex parte order will be served on the other person, telling him or her not to have any contact, direct or indirect, with you until your hearing. Keep in mind, the ex parte order is not the final order. It’s only meant to protect you until your initial hearing.

If you’re granted an order of protection, it will be effective for one year and can be renewed for an additional year, but you must prove that the order needs to stay in place.

How do orders of protection affect child custody?

And order of protection can seriously impact child custody matters. For example, one parent will name his or her children as a protected party, which means the other parent may not be allowed to see his or her children for up to a year.

See our Orders of Protection page for more info.

How Is Child Support Determined in Tennessee?

In Tennessee, all courts and state officials must adhere to the Tennessee Child Support Guidelines when determining the amount of child support to be awarded. These guidelines include using a streamlined system and a Basic Child Support Order (BCSO) calculation worksheet, which considers a number of unique factors when determining child support payments.

How do the BCSO worksheet and calculator work?

The Tennessee Department of Human Services’ website offers automated tools that are meant to simplify the process of calculating child support orders under the State’s Child Support Guidelines. The department offers both a downloadable Child Support Worksheet (spreadsheet) as well as a web-based calculator that serves as an automated version of the worksheet.

What about expenses and credits?

The first steps of the worksheet help parents determine their adjusted gross incomes and their respective BCSO shares. From there, additional expenses—such as those for health insurance, recurring medical care, and work-related childcare—are factored into the equation. The actual expenses are divided according to each parent’s percentage of their combined income and accounted for in each parent’s share of the BSCO. A parent may also receive credit for qualified other children for whom the parent is legally responsible and for whom the parent is providing support.

How is parenting time factored into child support?

Another consideration when calculating child support is the average number of days the Alternate Resident Parent (ARP) spends with the children. (A “day” is considered to be more than 12 hours of a 24-hour period whether it’s daytime or an overnight stay). Depending on the amount of time the ARP spends with the children, he or she may be eligible for a Parenting Time Adjustment.

When can the court impute income?

Income may be imputed when there’s no evidence of a parent’s income, or a parent is voluntarily unemployed or underemployed.  For example, a parent who stays at home to take care of children because the cost of childcare is more than the parent would be able to earn may not be considered willful unemployment. However, a parent simply stays home by choice and the amount of income he or she could be earning would be more than to offset the cost of child care may be considered willfully unemployment.

How do I modify an existing BCSO?

Both parents have the right to request a review to modify BCSO, however, a significant variance is required to modify an existing order. That means there must be a minimum 15 percent difference between the amount of the proposed child support order and the amount of the existing child support order.

Circumstances for a change might include children not included on the current BCSO worksheet; children who are on the current worksheet who are no longer dependent minors; and/or either parents has a significant change in income due to job loss/promotion, an inheritance, or prize winnings.

Common Tennessee Divorce Myths

We’ve helped hundreds of people in East Tennessee through their divorces, which means we also understand the many preconceived notions and misconceptions people have when it comes to the divorce process. Below is a list of some of the most common divorce myths we hear and the truth behind them.

MYTH #1: You are allowed to deny visitation if the other parent fails to pay child support.
Child support and visitation rights are not connected to one another. If the noncustodial parent fails to pay child support, the custodial parent must go to court to resolve the matter.

If you have a parenting plan, and the noncustodial parent is refusing to follow it, we can help you enforce it. In most cases, the best action is to file a petition for contempt. In that petition, you will ask the court to force the other parent to play by the rules. If the other parent does not do so, then he or she can be punished, sometimes even being subject to jail time.

MYTH #2: Children can choose which parent they want to live with.
In Tennessee, a child who is 12 or older may be able to tell a judge about his or her preference for primary residential parent, either in the courtroom or in the judge’s chambers. However, a judge will only take this information into consideration when determining custody and what’s in the best interests of a child. The amount of influence a child has revolves around several factors, including age, maturity level, and his or her reasons for preferring a certain parent.

During the divorce process, a judge will use common sense in evaluating parenting practices. If a judge believes that a parent is using unfair or vengeful custody tactics, the consequences can be devastating. Most judges believe that violating these type of tactics demonstrate that a parent is either unwilling or unable to exercise good judgment.

MYTH #3: Engagement rings and wedding bands are considered shared property.
In most divorce cases, an engagement ring belongs to the spouse who was the recipient of the engagement ring. Wedding bands are considered to be gifts from one spouse to another, and usually remain with the respective spouse.