My wife and I are in the process of divorcing (TN, Rutherford Cty);
this is since Jun 14'02 when she told me that she had filed for
divorce. Since that time we have both remained in our house, with my
11yo son, and her 15yo daughter. We interact well enough to keep the
household going, but little more than that. But..she has a passive
aggressive personality and is what I consider a habitual liar. These
characteristics have become exceedingly manifest since June, to the
point where I'm constantly on edge. I find things of mine missing,
I suddenly lose access to computer periferals to find out that I've
been locked out, W-2 forms missing, safety deposit box key missing,
ect.
My questions are these: what is a restraining order? could I obtain
one for or against my wife, forcing to move out, what would be the
legal and financial implications/consequences? This not something I
would take lightly, especially with nregards to my son, but it's beginning
to be too much stress. I have a lawyer but before I go to him with
this I would like to have so information.

Dear tomtgs-ga;

Thank you for allowing me an opportunity to answer your interesting
question.

You are basically talking about two separate orders. A “restraining
order” restricts a person from doing something in particular or from
committing an act(s). An “injunction” may restrict or mandate someone
to do something specifically ordered by a court, either at the court’s
behest or on behalf of a petitioner (which would be you).
 
Examples of a restraining order might be an court order in which your
spouse is restricted from liquidating assets, selling or destroying
property, harassing behavior, having contact with you and/or your
family members and so on. Restraining orders are usually temporary and
expire after a certain amount of time.

Examples of an injunction might be an court order in which your spouse
is mandated to move out of the house, give up physical possession of
property (land, cars, dog, whatever). Injunctions can be either
temporary or permanent.

Both of these orders frequently have similar power of the other. For
example, assuming she is ordered to move out of the home you share,
either order might say something to the affect of  “you are ordered to
remain at least 100 yards from the petitioner’s house, property or
place of business”. Since the house you once shared also belonged to
her prior to the order, this order (regardless of which kind of order
it is) is both mandatory “and” restrictive. But for the sake of
knowing which is which, refer to the common usage of these orders as I
have outlined above.

A person who violates a court order is in contempt of court. The
restrained person found in violation of a valid restraining order may
be arrested, taken to jail and made to post bond (if any is
applicable). In addition, the offender can be charged with a
misdemeanor or a felony crime, and could be sentenced to serve time in
jail and to pay a fine, not only for being in contempt of court, but
also for committing the offense (like harassment, for example).

I imagine that you will find these very informative sites:

FREE ADVICE – FAMILY LAW
http://family-law.freeadvice.com/
http://law.freeadvice.com/general_practice/legal_remedies/restraining_order.htm

THE SITE FOR FAMILY LAW IN TN
http://www.divorcetn.com/


Now this is a very important point so pay close attention. Most
restraining orders and injunctions are issued pending a hearing or
other court action. The purpose of these orders is to maintain the
peace until such time as the matter can be permanently settled, either
by agreement of the two parties, third party arbitration or a decision
by a court with jurisdiction over family law. In some jurisdictions,
any contact initiated by the petitioner (you) with the defendant (your
wife) “could” void the court’s order. If you are going to consult your
attorney anyway, be sure to ask him/her about this. The reason I
mentioned it is because some courts will not issue any type of
injunction or restraining order against two people who are voluntarily
cohabitating, as this (again, in some jurisdictions) in itself
violates the very premise of the order. If your state is one of these,
it will probably be necessary for you and your wife to physically
separate in order to for your request for the order to be granted.
Then again, separation will also solve most of your problems, with the
exception of who maintains physical control of the house in which you
now live. This can be addressed, temporarily at least, by filing for
divorce and petitioning the court to grant you temporary custody of
the home until a hearing to determine which of the two of you gets to
keep it or whether it should be sold. The court bases this decision on
a number of factors, a few of which are finances, which of you owned
the home prior to the marriage, if the home has any value in terms of
family history more specific to one of you than the other (like if the
home was been passed down to you by inheritance and has been for
generations) the comfort and interest of the children, etc.

It should also be noted that mere the process of filing for divorce,
by itself, could, and does in most cases, impose certain automatic
injunctions and restrictions on both parties.

I hope you find that that my research exceeds your expectations. If
you have any questions about my research please post a clarification
request prior to rating the answer. I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga



INFORMATION SOURCES

TEMPORARY RESTRAINGING ORDER AND ORDER AFTER HEARING
http://family-law.freeadvice.com/
http://family-law.freeadvice.com/domestic_violence/restraining_order04.htm
http://law.freeadvice.com/general_practice/legal_remedies/restraining_order.htm

TENNESSEE FAMILY LAW
http://www.divorcetn.com/d14.htm

FINDLAW – LAWCRAWLER
http://lawcrawler.findlaw.com/

NEW RESTRAINING ORDER LAW FOR DIVORCING PARTIES
http://www.divorcetn.com/ch280.htm

THE SITE FOR FAMILY LAW IN TN
http://www.divorcetn.com/


SEARCH STRATEGY


SEARCH ENGINE USED:

Google ://www.google.com


SEARCH TERMS USED:

FAMILY LAW TENNESSEE

DIVORCE TENNESSEE

RESTRAINING ORDER TENNESSEE

INJUNCTION TENNESSEE

FMAILY COURT TENNESSEE

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Clarification of Answer by tutuzdad-ga on 12 Feb 2003 04:26 PST

You also say "...Jun 14'02 when she told me that she had filed for
divorce." Do you know for a fact that she did this or are you just
going on her word? The reason I ask this is because the court normally
provides both parties with a booklet, or some other form of special
instructions, that dictates how they should behave during the
proceedings - the "do's" and "don't's" if you will. If you did not
receive one you should get one (and be a bit suspicious as to "why"
you didn't get one). In my state at least, the guidelines provided in
the booklet are not mere suggestions, they are generic, but standing
court orders. One could potentially bring his spouse back into court
over repeated or habitual violations of the behavior guidelines.
Moreover, since June 4, 2002 is an unusually long time to be going
through a divorce in most states, and I find it VERY perplexing that
you are just now considering seeing a lawyer. If these things haven't
set off some subconscious alarms for you they should. Make that
appointment with your lawyer as soon as possible.

Regards;
tutuzdad-ga

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Request for Answer Clarification by tomtgs-ga on 12 Feb 2003 18:33 PST

re tutuz-dad request for clarification. She filed for divorce, papers
were served, and guidelines for expected behavior were issued. I
immediately retained the services of a attorney. What I intended to
convey was that, before I discuss any action be it restraining order,
injunction or someother legal action with the lawyer I have, I want to
know as much about these before speaking with him about it.

---

Clarification of Answer by tutuzdad-ga on 12 Feb 2003 21:33 PST

Thank you for your clarification. I just wanted to make sure we had
all the bases covered and thought I'd inquire as an after-thought.

Thank you;
tutuzdad-ga

Thank you. This service has helped me enormously. Not only the initial
answers to my my questions, but the comments that fill in and add to
the information requested, as well as the references  provided, all
help to ground me and walk me through the most difficult period of my
life. I feel that the questions that I ask in anonymity either support
or help me to evaluate the information and options that my attorney
puts forth to me.

Dear tomtgs,

The type of proceeding you apparently contemplate would be called a
"Motion for Exclusive Possession of Marital Home", or something
similar. A restraining order or personal protection order would be
unlikely, unless there is a history of domestic violence or some
similar, compelling reason to order one of the parties not to approach
the other.

While the grounds behind a "Motion for Exclusive Possession of Marital
Home" do not have to be as compelling as those for a restraining
order, most judges still expect some strong reason before they will
compel one party to move out of the marital home - and moreso when the
order would affect a child's residence as well. The judge may also
want to know why, if things are so bad, the party bringing the motion
has not moved from the marital home.

Thank you. I appreciate the responses and learned from them both! I
suspected that it would take some compelling reason to have a judge
remove my spouse from the marital home.
I haven't left the house for a number of emotional and practical
reasons, but primarily so as not to jeopardize my case to maintain
custody of my son.
 
So the way I see it is, that for me to maintain my residence, and to
hold on to any hope of keeping my son, I have subject myself to a
subtle, constant abuse. She can't beat me up, or attack me in any
physical way, but she can inflict pain and suffering in a way that she
is expert. If I had to choose, I would rather that she cause me
physical pain, than what she subjects me to.