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atesonlyafalsesenseofsecurityinthat cuitCourt,forexample,morethan2,600 • ordersendureforoneyearor,inthe

someone willing to break the law and orders of protection were filed in 2009. By event of a divorce filing, until the
assault or kill the other individual is also last year, Judge Bill Swann estimated he divorce is resolved if it drags on for

unlikely to be put off by a judge’s order had around 5,000 cases for such orders. over a year, but can be extended at
not to come near him/her.
He also estimates that about 47 percent
the victim’s request. Wives can use

Shawn Smoot, for example, was of those claims are fraudulent, yet a vast the order in a divorce as a bargain-
charged with killing 23-year-old Brooke majority of these individuals still obtain an ing chip, particularly when children

Morris (both of Knoxville) last year, order of protection.
are involved.
despite Morris’s having an order of Nationwide, according to the Depart-

protection against Smoot. In April ment of Justice, judges issue between 2 Not all orders of protection, of course,
another Knoxville man was re-released and 3 million orders per year. If Judge stem from divorce proceedings, but

on bond a second time only three days Swann’s reckoning is correct, we could considering there were about 840,000
after violating an order and being shot have more than a million people (85 divorces last year and more than 2

while breaking into the house where his percent of them men) with fraudulent million such orders issued, if you are
girlfriend was seeking safety. These are preliminary orders issued against them. involved in a divorce, the probability is

extreme examples of why an order of other sources put the false-claim rate high your spouse will seek one. Even if
protection should be issued, but it also even higher.
your behavior has been impeccable, an

shows that if an individual has no regard obviously, judges think it wise to unscrupulous attorney can encourage
for the law that the order of protection err on the side of caution, but some of their client to request the order and to

will not stop a bullet.
the reasons to be concerned about this cause an otherwise peaceful person to
Although an order of protection gives widespread injustice are:
be provoked into doing something that

law enforcement justification to arrest can be used as a basis for such an order,
immediatelytheoffenderwhoviolatesit, • Theaccuseddoesnotgetachanceto notonlyforthebenefitoftheircasebut

the order is not, as these examples show, answer the preliminary accusation, also to increase legal bills. After all, if
an ironclad guarantee of safety. More im- which is an ex parte hearing—mean- the two parties are forbidden to have

portantly, many times orders of protection ing without notice or opportunity of any contact, then all communication
are abused, not only by the parties, but by defense. Eventually, there will be a must be done through your legal team,

their attorneys as well.
full hearing, but, again, even then the running up costs.
one school of legal thought is to lean burden of proof will be low.
Fathers’ rights groups are asking for

heavily in the person seeking the order’s a more level playing field in divorce
favor.Thatis,ifyoubelieveanother • Iftheaccusedisaspouse,heistypi- courts,andoneofthemajorissuesthey

person is a threat to you, that’s sufficient cally forced out of his home by the see in need of reform is the evidentiary
grounds to ask that he or she stay away. order. This expulsion gives the person burden for orders of protection. What-

Because of this legal reasoning, the evi- granted the order a tremendous ever the outcome of these groups’ lobby-
dentiary burden for orders of protection advantage in the divorce proceed- ing, the best defense against a fraudu-

is the lowest possible, meaning prepon- ing, including financially and in any lent order is an ethical and experienced
derance—or 51 percent—of the evidence. struggle over custody.
family-law attorney.

Yet in the case of spouses who are bound
together legally and often through shared • Regardless of the order’s merit, a David Valone
is a veteran family law attorney who has been
children, the cost to the person being man carries the embarrassment and practicing law in Knoxville, Tennessee for the past 28 years.
served with the order can be much higher presumed guilt of being a stalker or He is a sole practitioner who has tried thousands of cases in

than to a more casual acquaintance and abuser afterward.
most counties in East Tennessee. Mr. Valone is also certiied
can have far more ready consequences.
as a Family Law Mediator by the Tennessee Supreme Court.

The low evidentiary threshold gener- • The falsely accused person could His areas of concentration include cases dealing with divorce,
ally makes obtaining an order easy in lose his right to keep his gun and/or child custody, and child support issues.

some jurisdictions. In Knox County Cir-
right to carry a gun.

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