Suing an Abuser
Can I sue an abuser in civil court/small claims court?
What can I do if the abuser keeps filing petitions or motions against me?
What is an abusive civil action?
What is a “civil action party relationship?”
How do I tell the judge that a case filed against me is an abusive civil action? How will the judge decide?
What are the possible outcomes of an abusive civil action claim?
You may have a right to seek justice from the abuser through the court system where you live. When people are injured by others, they are permitted to seek what the law refers to as “damages,” in the form of money, for such things as medical bills, lost wages or employment, physical and emotional pain and suffering, and, in some cases, to punish the abuser. Each state has its own laws on these subjects, but, for the most part, they are very similar when it comes to injuries from abuse. To do this, you will most likely need the help of a lawyer. Some lawyers will take a case like this for a “contingent fee,” which means the lawyer does not get paid unless you win in court, and then s/he takes a percentage, usually a third, of whatever damages the judge orders. Sometimes the judge will order the defendant to pay for your attorney’s fees.
If your damages are below a certain amount, you may be able to file on your own in small claims court. Small claims court is a less formal type of court, and many people are able to go to small claims court without the help of an attorney. In Tennessee, you may file in the court of General Sessions on your own for anything that is $25,000 or less (although that limit doesn’t apply for a case in which you are suing to recover personal property - in other words, the property can be worth more than $25,000).1 If you want to sue for more, you may need the help of a lawyer. You may talk to the clerk of court in your county for help in filing a lawsuit in small claims court. You can get more information by reading Guidelines and Helpful Information for People with a Case In General Sessions Court on the Tennessee State Courts website (although it was last updated in 2013). You can also see Legal Aid of East Tennessee’s Representing Yourself in General Sessions Court (under the Consumer Information section).
If you need help in finding a lawyer who can take your case for a contingent fee, contact:
National Crime Victim Bar Association
2000 M Street NW, Suite 480
Washington, D.C. 20036
Lawyer Referral Line: 800-FYI-CALL
Offers information and lawyer referrals to crime victims seeking to sue offenders.
1 TN ST § 16-15-501(d)(1)
Tennessee law allows you to to file a claim for an “abusive civil action” against an abuser who files a lawsuit or motions against you to “primarily harass or maliciously injure” you.
An abusive civil action is when someone with whom you have a “civil party relationship” is filing lawsuits or other claims in civil court against you “primarily to harass or maliciously injure” you. For example, if you win sole custody in court, but the abuser files for a change in custody without good reason and primarily to harass you, the abuser may have filed an abusive civil action.
Abusive civil actions are a form of litigation abuse. You can read more about litigation abuse in general on our Litigation Abuse page.
To prove a civil action was filed “primarily to harass or maliciously injure,” you have to prove it was filed for one of the following reasons:
- to drain your finances without a valid reason to do so;
- to prevent or interfere with your ability to raise your and the abuser’s children in the way you decide is appropriate without a “good faith basis” to do so;
- to force or coerce you to agree to make financial, custodial, or other legal decisions that aren’t good for you, when a judge has already decided in your favor about these issues;
- to force or coerce to do something or stop doing something legal that you have the right to do;
- to harm your health or well-being, or the health or well-being of someone who legally depends on you, like your child or other dependent;
- to prevent or harm your ability to maintain your lifestyle in the same way you did before the abuser sued you; or
- to harm your reputation in the community, or isolate you from your friends, coworkers, attorneys, or business associates by unreasonably involving them in lawsuits.1
One of the following things must also be true for the civil action to be considered an abusive civil action:
- The legal arguments the abuser is making are not supported by an existing law, a reasonable argument for a change in an existing law, or the creation of a new law;
- The legal arguments the abuser is making aren’t supported by the evidence; or
- The abuser has filed lawsuits about this issue before in one or more other courts, and those lawsuits were decided in a way the abuser didn’t want (unfavorably).2
1 TN ST § 29-41-101(6)
2 TN ST § 29-41-101(1)
There are generally two “parties” to a lawsuit:
- the person who brings or starts the legal action, known as the “plaintiff;”1 and
- the person being sued, known as the “defendant.”2
Only the defendant, the person who legal action is being taken against, may bring an abusive civil action claim.
You and the defendant would be considered to have a “civil party action relationship” under the abusive civil action law if you:
- are current or former spouses;
- live together or used to live together;
- are dating or used to date each other, outside of a business or social context;
- are in a sexual relationship or used to have a sexual relationship with each other, outside of a business or social context;
- are related by blood or adoption;
- are related by marriage or used to be related by marriage; or
- are an adult child of someone in a relationship described above in A through F.3
1 TN ST § 29-41-101(2)
2 TN ST § 29-41-101(4)
3 TN ST § 29-41-101(5)
If you believe that a case filed against you is an abusive civil action, you can tell this to the judge in your written “answer,” which is your legal reply to the civil action, or at any time during the civil action through a “motion.” The judge can also decide on his/her own that a hearing is necessary to determine if the civil action is an “abusive civil action.”1 After you inform the judge or the judge decides there may be an abusive civil action, the judge should then hold a hearing to determine if the action is an abusive civil action. At the hearing, the judge should consider any relevant testimony, evidence, and records to determine whether the case is an abusive civil action.2 You can see what factors a judge will consider at What is an abusive civil action?
There are also specific situations in which a judge should assume an abuser is bringing an abusive civil action. If evidence of these situations is given to the judge at the hearing, you do not have to prove the abuser filed an “abusive civil action.” Instead, the abuser has the “burden” of proving s/he did not file an “abusive civil action.” The specific situations are:
- You and the abuser have been in another court within the last five years about the same or very similar issues, and the case or cases were after the judge conducted a hearing or trial, which is known as being dismissed “on the merits” or “with prejudice” against the abuser;
- The abuser has used the same or very similar issues as the reason for a complaint against you to a regulatory or licensing board, and the board dismissed the case after a contested case hearing in compliance with Tennessee’s Uniform Administrative Procedures Act;
- The abuser has been sanctioned under Rule 11 of the Tennessee Rules of Civil Procedure, or under a very similar rule or law in another state, or by the federal government, for filing one or more “frivolous, vexatious, or abusive” civil actions within the past ten years involving the same or very similar issues and people as the current case; or
- A judge in another judicial district has decided that the abuser filed an abusive civil action in that district, and the abuser is or has been under “prefiling restrictions” in that district.3
1 TN ST § 29-41-103
2 TN ST § 29-41-104
3 TN ST § 29-41-105
If the judge decides that it is more likely than not that the abuser did bring an abusive civil action lawsuit, the lawsuit and claims should be dismissed. The judge should also order:
- the abuser to pay all the current court costs of the civil action;
- the abuser to pay your attorney’s fees and all reasonable costs of having to defend against the abusive civil action; and
- “prefiling restrictions,” which will limit the abuser’s ability to file any civil actions against anyone for between four to six years.
If the judge decides that it is more likely than not that the abuser did not bring an abusive civil action lawsuit, the judge may:
- find certain facts in the abuser’s favor,
- grant partial judgment in the abuser’s favor,
- even let the abuser win the case;
- order you to pay all the current court costs of the time it took to decide whether there was an abusive civil action; and
- order you to pay reasonable attorney’s fees for the abuser and all reasonable costs of having to defend against your claim that the case was an abusive civil action.1
1 TN ST § 29-41-106