Temporary Restraining Orders
Temporary Restraining Orders and Divorce
Tennessee allows parties to obtain ex parte (meaning “on or from one party only, usually without notice to or argument from the adverse party”) temporary restraining orders to preserve the status quo until the court makes a final decision.
What is required to get a Temporary Restraining Order? The law requires a party to swear under oath to the existence of specific facts that “clearly show that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition.” Also, the party or her attorney must certify efforts made to give the other party notice and reasons why notice should not be required. This rule appears to set a high standard, but in practice, such orders are frequently granted on questionable grounds. Often, no effort is made to notify the other party. Facts are easily exaggerated because the judge granting the order only gets one side of the story and there is no opportunity to present contradictory evidence.
When is a Temporary Restraining Order effective? A party is bound by the terms of a TRO from the date he is informed of its issuance or when he is served, whichever occurs earlier.
What are the limits of a TRO? A restraining order issued without notice can only prohibit conduct. This is in contrast to a temporary injunction, which may either prohibit or mandate a party to take action. Temporary injunctions may only be issued after notice to the other party and opportunity for a hearing. However, TROs may be worded in such a way as to effectively mandate conduct. For example, a TRO that “restrains Husband from going on or about the marital house” is effectively ordering the husband to move out of the marital house. However, even if a TRO is clearly excessive or unfounded, you must follow whatever the judge has ordered unless and until that order is dissolved.
What do I do after I’m served with a Temporary Restraining Order? First, read it carefully and follow whatever it says. This is a judge’s order and a violation may result in criminal penalties. If you believe the order is baseless, mandates conduct, or otherwise violates your rights, call a lawyer and file a motion to dismiss the TRO. If the TRO interferes with your rights to be around your children, this can be detrimental to the ultimate outcome of your divorce because your spouse may claim that she is the primary caretaker because you have not been around. TROs are issued based on one side of the story. Get a Nashville Divorce Lawyer, gather your evidence, and fight back.