Category Archives: Family Law

Orders of Protection

An Order of Protection is a civil action but it can have criminal repercussions if violated.  Orders of Protection can be issued between those persons who have lived together, had sex, are related, had dated or other such close relationship.  Orders of Protection can be issued when there is a real or immediate threat of harm to the complainant’s person or property.

Typical examples justifying the issuance of an Order of Protection are threats to burn the complainant’s car, threats of physical violence – especially when there is a history of domestic violence, actual physical violence, and threats against the complainant’s children and or pets.

Orders of Protection may be issued in one of two ways.  First, the complainant (the Petitioner), completes a form requesting an Order of Protection and submits it under oath to the magistrate.  If the magistrate finds probable cause, an ex parte Temporary Order of Protection is issued.  This temporary order lasts usually for no more than fifteen days.  The order becomes effective when the other party (the Respondent) is notified of the order by the Sheriff’s Office.  During this time, the Respondent must not contact the Petitioner either directly or indirectly through others and must stay away from the Petitioner.  If the parties were sharing a home, the Respondent may contact the police department to arrange for a time to collect her or his personal belongings from the home.  A formal hearing is scheduled and both parties may attend to present their side of what occurred between the parties.  A judge then decides to extend the Order of Protection or to dismiss it.

If at any time while the Order of Protection is in effect and is violated by the Respondent, the Respondent is subject to immediate arrest.

An Order of Protection may also be issued when both parties appear before a judge or magistrate. For non-married parties, this starts at the General Sessions Court level.  This is typically to establish whether by preponderance of the evidence the Petitioner can prove that the Respondent has done something that would merit the issuance of the Order of Protection.

If you believe you need an Order of Protection, please do not hesitate to act.  Your safety is paramount.

The Rushton Law Firm, PLLC offers both Orders of Protection prosecution and defense services.  Please contact us today to learn more about our services and how we can assist you in prosecuting an Order of Protection or defending yourself from a wrongfully issued Order of Protection.

To view an Order of Protection application, please click this link.

https://www.tncourts.gov/programs/self-help-center/forms/order-protection-forms

 

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Filed under Family Law, grounds for divorce, Litigation

In Defense of Step-moms (and dads)

Remember Cinderella’s step-mom? “Light the fire! Fix the breakfast! Wash the dishes! Do the mopping! And the cleaning and the shopping!”* She was definitely not the kind of step-parent a child would ever want or need. She was the original “step-monster”.

I’m a step-parent, but to grown adult children with children of their own. But whether the children are very small or adults on their own, there is no tried-and-true manual for step-parents to “fit” into the new family dynamic. After all, each family is unique with their own way of doing things, patterns of communication, and traditions. And, maybe the step-parent is not entirely welcome, especially if the “original parent” feels replaced, angry, jealous, and/or threatened and communicates this directly or indirectly to the children.

Nothing could be worse for your children. Several years ago, a woman I know (we will call her Linda) met the fiancé of her former spouse.  Sadly, Linda took most every opportunity to criticize the woman.  She would not listen to reason nor dignity. Her child marinated daily in her mother’s hatred for the fiancé.

The fiancé appeared to love the child. She attended the child’s events at school, church and gymnastics.  She sent her home with treats, and otherwise demonstrated her attachment to her.  The child wanted to love the step-mom but Linda sabotaged it in every possible way.

The child’s father was no “winner”. Having been previously granted only supervised visitation, his ability to properly care for the child was in question. Linda failed to grasp that the fiancé could ensure her well-being during the father’s parenting time. We encouraged Linda to make an ally of the fiancé but she refused. The fiancé became the step-mom. She gave up trying to be friendly and joined her new husband in the ongoing war between the parents.  The child suffered and exhibited signs of emotional distress as a result of her parent’s antics.

Don’t be “Linda”. Love your child more than you hate their step-parent.

So, what do you do when the step-mom / step-dad appears? To be direct, you do not have a right to prevent your child’s other parent from dating or remarrying. They have all the same rights as you do to live a full life.

So, it is time for a little introspection.

First, do you welcome a step-parent in your child’s life? If not, why not? Be specific. Write it down. Odds are if you are unable to lay out the “why” on paper, it may be more of an emotional reason than a rational one. Note, it is not enough that you “just don’t want someone else in the child’s life”. If that is the only thing you can come up with, take a breath and put on your adult shoes. Life moves forward whether we want it to or not. Adulting is not always easy, but it is what we are called to do once we have children.

Second, take inventory of your emotions. Are you angry? Jealous? Threatened? And, if so, why? Are these emotions something you want your child to marinate in? Even if you don’t openly verbalize your unhappiness about the step-parent, your child will still pick up on the non-verbal cues.  Keep adult emotions and feelings away from the kids. They can’t fix it and the are very sensitive to the emotional well-being of the hand that rocks the cradle. In short, keep the kids out of it.

Third, is it the thought of your calling someone else “Mommy” or “Daddy”?  Please know, if you seek to maintain your place in that child’s life and take care of your obligations as a parent financially and emotionally, there is no reason why you won’t remain “Mommy/Daddy”. Yes, seeing your child get attached to a new dating partner can be hard (Divorced and Dating with Kids is the subject of another article). But, by creating and maintaining a respectful relationship with the new step-parent, you will know someone is ensuring your child’s well-being when you are not there, and that peace of mind is priceless.

Fourth, do you believe the step-parent is in any way a threat to the safety and well-being of your child? Does he or she have a history of drug use? Violence? High risk activities? Child molestation? Alcoholism? Criminal activity?  If you have any of these concerns, then stop reading and call your attorney right now.  The “best interests” of the child is the gold standard in parenting time allocation. 

Our hope is that your co-parent will be respectful and reasonable in how they handle introducing the new spouse into the family. Remember, it is not always the easiest task for the parents, step-parent or the child. Show each other some grace and give it some time. Take it slow. Open a dialogue with your co-parent about any concerns you have and collaborate – don’t try to dictate. This is not your decision. Yes, your child is involved but again, your ex has every right to move on in his or her life. Collaboration with your co-spouse will ease the transition.

Life evolves. You will want the same considerations when you fall in love again and or remarry. The shoe (glass slipper) will be on the other foot and you could be the step-monster, I mean step-mom.

Good luck!

 

*from Cinderella’s, “The Work Song” Continue reading

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Filed under Court, Family Law, Litigation

Divorce – Need help navigating the dark path ahead?

lwsm_dark-path_1994-test_159If you are contemplating a divorce in Tennessee or already in the process, the road may be a rough one appearing to be filled with perilous pitfalls. Every divorce situation is different and many are quickly and amicably resolved. These are typically referred to as “uncontested divorces.”  Sometimes things work out well and everyone leaves the marriage satisfied that they have worked things out amicably.  However, some divorces are riddled with animosity, feuding and strife from day one. This is something that is very difficult to predict because of the nature of divorce.  Many times an “uncontested” divorce quickly becomes contested and the parties find themselves in a living nightmare!

As attorneys at The Rushton Law Firm, PLLC, we handle both types of divorces, contested and uncontested.  We focus a large part of our practice on handling divorces in Nashville, Tennessee and surrounding areas. That means we deal with divorce situations every day and are knowledgeable in this area of the law. We understand that divorce can be a very difficult time in your life.  Divorce can be a bit of an emotional roller coaster and those emotions can hamper moving forward or even damage your case, depending upon how you act upon those emotions. That is why it is of utmost importance to retain an attorney to represent you in your divorce.

Our law firm focuses on divorce matters. We zealously advocate for our clients rights in every aspect of your case.  We also walk hand in hand with you through the process so you do not have to go it alone.  It can be a scary time in your life and you need someone that cares enough to help. When you retain The Rushton Law Firm, PLLC you hire a team of professional attorneys that are here to help you navigate the dark path that is before you. You also get an team of advocates that are on your side, representing your best interests and working to make sure you are protected during your divorce. Each and every phase of the divorce process is crucial to the final outcome of your case. Do you want to risk your future?  Of course not!  That is why you should hire a team that cares about your case, is knowledgeable of divorce law and fights for your rights from day one!   That’s why you should call The Rushton Law Firm, PLLC.

We offer FREE consultations to discuss your case and help guide you through the process. Call us now at (615)576-0071 or (615)815-9967. We are available during regular business hours and even after regular hours to help. We understand that life doesn’t just happen between the hours of 8:00 AM and 5:00 PM and we will take time to answer your after hours calls and give you sound advice.

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Harold E. Rushton, Esq. is a Nashville, Tennessee based Divorce, Separation and Criminal Defense Attorney serving Davidson, Williamson, Rutherford, Dickson and Wilson Counties.  Call The Rushton Law Firm, PLLC  Phone:  (615)576-0071 or (615)815-9967

Call today for a FREE consultation (615)576-0071 or (615)576-0071

Email: Harold@TheRushtonLawFirm.com or Leigh@TheRushtonLawFirm.com

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Filed under Family Law, grounds for divorce

Spousal Abuse & Literal Payback

domestic violenceLast month, an Ohio Court awarded Jennifer Kershaw $1,580,000 in compensatory damages and $20 million for punitive damages.  The  Defendant was her former spouse, Jerry Bailey.  The lawsuit was over physical injuries she received from being punched in the face repeatedly by Mr. Bailey while the two were still married.  Mr. Bailey was fined $100, sentenced to two years probation, and served a mere two days in jail after a conviction of misdemeanor domestic violence for his then wife’s broken facial bones.  Two days in jail.  $100.  Probation.   Case over?  Not yet.

Genesis 2, verse 24 reads  “… man shall leave his father and mother, and be joined to his wife; and they shall become one flesh.”  Aside from the spiritual aspects this invokes, it is the “one flesh” that was used indirectly to deny women the right to vote, to own property, and other core rights we as women now take for granted.  Women were considered part and parcel of their husband’s person and even property, depending on the time and culture.  If the two were “one flesh”, a woman’s individual rights merged with of those of her spouse.  The rights belonged to him alone, not her individually.  And to be fair, men could not sue their wives either.

Times change.  Tennessee abolished interspousal tort immunity in 1983 with Davis v. Davis, 657 S.W. 2nd 753 (1983).  In Davis, a wife sued her husband for injuries she received from his negligent operation of a boat.  That case opened the door for suits against spouses in Tennessee, but that open door has not turned into an open flood gate.  While relatively few, it is still possible to pursue an action in tort against a spouse in Tennessee.

While the Kershaw judgment will be reduced under Ohio’s caps for punitive and non-economic damages, the case sends a message that domestic abuse – by either spouse – is not okay and will not be tolerated.

Whether you are male or female, if you are facing domestic abuse, get help.  Being hit is never “your fault”.  Filing suit is not your first  step – but getting and staying safe is.  We can assist you with Orders of Protection, filing for divorce, custody or suit when you are ready.

Click here and here for Nashville area resources.

Click here to read more about Ms. Kershaw’s case.

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Filed under Family Law

Social Media, Divorce and Inappropriate Marital Conduct

Divorce. It can be one of the emotionally painful experiences in one’s life. The urge to show your soon-to-be former spouse that you are “moving on” with a new love and out on the town instead of waiting at home for her or him to return can be quite powerful. Almost irresistible. Resist!

divorce cake FacebookAs an attorney, I guide my clients not to publish their “moving on” moments on facebook or other social media and just keep it off social media period.  Maybe your spouse may feel jealous of your latest loves after seeing you online going out night after night in downtown Nashville. Maybe not. But, your shared moments are well-documenting what the court would likely see as Inappropriate Marital Conduct – which is grounds for divorce in Tennessee. In other words, you are building a substantial case against yourself, selfie by selfie, all without your spouse or his/her attorney lifting a finger, other than saving the pictures to be used at trial.  And, even if you delete content in a dramatic effort to clean up your social media history, it is still discoverable.  Even deleted, once posted, it never actually goes away.  People have long memories.  The internet’s is longer, as in forever.

To read more on the impact of social media on divorce please click here.

Divorce is difficult enough without making it harder on yourself. Keep your social media clean and consistent with your position in the divorce. In the end, your attorney will be glad you did, and so will you.

T. Leigh Hearn-Rushton

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Filed under Family Law

What To Wear To Court (not Pajamas)

If you are reading this, you likely have a court date on the horizon and aren’t sure how things work – including what to wear. It is good you are already getting ready for your court date and working on being prepared.

Different courts have different rules, but across the board, it is important to dress appropriately and in a way that indicates your respect for the court.  If you are not attired properly, the bailiff (the court officer) could ask you to leave the courtroom until you have corrected your clothing issue. For example, in most courts, you are not allowed to wear hats, halter tops, midriff shirts, untucked shirts, low hanging pants or other attire that shows too much skin or just is too casual for the courtroom.

pajamasA Clerk of Court in Pennsylvania recently had signs posted in the court room indicating that pajamas are not appropriate court attire.  Really!  Pajamas!  You would think that would be obvious “what not to wear” but clearly, in that courtroom, it had happened one too many times.

So, what do you wear? You don’t have to wear a suit, but being tidy and presentable is always a good idea. Men can safely dress in slacks and a button down shirt. Ladies can wear the same or a skirt (make sure it is knee length or just above – no mini-skirts, please).

Again, the overall tone is to show the court respect both by your actions and your attire.  Just keep the pajamas at home and you should be fine.

T. Leigh Hearn-Rushton

See the no-pajama article by clicking here.

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Filed under Court, Family Law, Litigation, Service of Process

I’ve been served with a Subpoena!

You’ve been served with a subpoena.  It requires you to produce documents/information and or to appear in court to testify on a certain date and time. What’s next?

subpoenaIf you are already have an attorney, contact her first and let her know you’ve been served. She will need the subpoena to evaluate it and your next steps. Time may be of the essence, so deliver it promptly to your lawyer.

Depending on the subpoena, you may be required to provide documents and give testimony, give testimony only or provide the information only without appearing in court.

Subpoenas are usually specific on what information or documents are required. It may require copies of the last few years of tax returns, the location of certain property, a detailed list of all real or personal property, lists of accounts payable, banking records or other financials. It is best to start collecting the requested information quickly. Some records may have to be requested from your banking or other institution and may take several weeks to receive, if not longer.

Your subpoena may require to you appear in court to provide testimony regarding the documents you’ve brought with you or a matter with which you are familiar. Perhaps you witnessed a domestic incident or saw a car wreck happen on your way to the gym. Either way, serving as a witness often means a few hours at court. Just because your subpoena states to arrive at 8:45am doesn’t mean you will testify at 9:15, 11:15 or even noon. The docket must be called for all the cases and motions to be potentially heard that day.  The hearings and/or trials are then held.  Yours could be one of them.  On the other hand, the case could settle and the matter resolved before you have to testify. You never know, so be prepared to be in court much of the day, just in case.

While appearing in court for your subpoena may make you nervous, it is okay. Follow your attorney’s directions and you will be fine!

 

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Filed under Civil Procedure, Family Law, Litigation

Dear Facebook. I want a divorce!

You may have started your relationship online but can you end it that way too? Yes, in New York, a woman served her soon-to-be former spouse with divorce papers via facebook.

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Here in Tennessee, one is typically “served” in person, through their attorney, or by leaving service of process with a person of suitable age and discretion who lives with the Defendant. Note that service of process procedures can and do differ by state. After all, one needs a head’s up if your spouse is divorcing you or you have some other pending legal action against you.

But what if you can’t find you former flame or even where they live? See the article below for a woman who found herself in this position for a number of years. The only thing she did know was that her husband regularly checked facebook.

Last year, a New York court allowed her to achieve service of process for a divorce by sending the documents via facebook. The social networking site even documents if the message was read and at what time. Imagine opening your facebook private messages to find you are being sued for divorce. It is taking “You got Served!” to a whole other (electronic) level.

Is service of process for a lawsuit by facebook the coming norm?

Unlikely. Service, even through a process server, is to ensure one has personal notice of a pending legal action. The key words here are “personal” and “notice”. Our system is designed to ensure you have adequate and proper notice of the legal action so that you can prepare a defense and/or otherwise address the issue at hand.

Again, in most cases and states, while this type of service won’t be accepted anytime soon, it is a little something for you to think about the next time you check your fb account….

 

See Washington Post Article here.

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Filed under Civil Procedure, Family Law, Service of Process