women cryingDomestic violence is a factor in many divorces handled by family lawyers. Abuse can take many forms. It can be physical, verbal, or emotional. In a recent survey conducted by the American Academy of Matrimonial Lawyers, one-third noted an increase of  in the number of divorces that cite domestic violence as a factor in the dissolution of the marriage. Further, 36% noted that the number of restraining orders attached to divorces was increasing.

When domestic violence is a factor in a divorce, the first priority is safety. Ensuring the safety of the individual and children requires the following:

  1. Order of Protection – Issued by the courts, this limits an abusers ability to contact or injure a divorcing spouse or the children of the marriage. The courts have broad discretion in issuing orders of protection under the Illinois Domestic Violence Act. However, they generally error on the side of caution. To request an order of protection, an individual must file a petition with the police department. This is followed by a hearing before the court (usually the same day) wherein the court will decide if reasonable cause exists to justify a temporary order. This is followed by an evidentiary hearing to determine whether a permanent order is required. Once issued, a copy of the restraining order should be kept with the protected individual(s) at all times. If children are included, a copy should also be kept at their school. Violating protective orders can result in a fine or jail time.
  2. A Support Network – Protective orders are pieces of paper. They give an individual legal grounds to prohibit contact, and pursue action if the order is violated. However, protective orders do not provide physical protection. For this, an individual needs a support network of friends, family, the individual’s family lawyers, and police. This support network should be contacted the moment an individual violates, or threatens to violate a protective order. The Illinois Department of Human Services, office of Domestic Violence Victim Services should also be part of this network. They can help provide guidance and direction to services that can be of assistance.
  3. Counseling – Domestic abuse creates deep emotional wounds. Every member of the family should undergo professional counseling to begin repairing the damage. It’s necessary for moving forward in a healthy, positive direction.

Proving Domestic Violence

The presence of domestic violence within a marriage can be challenging to prove.  For this reason, the collection and preservation of evidence is essential to preventing a “he said/she said” argument occurring before the court. Photographs, video, saved phone messages, emails, hospital records, police reports, etc. provide that proof. Counselors reports and testimony of witnesses can be used to support these records.

For this reason, it is imperative that victims of domestic violence create and maintain as detailed a record as possible. This information should be kept in at least two locations that are secured so that the abuser cannot gain access to them.

Preparing for Divorce

Recent changes in Illinois’ Dissolution of Marriage Act mean that it is no longer necessary to list domestic violence as grounds for divorce. Instead, all that must be shown is that irreconcilable differences exist. However, that doesn’t mean that domestic violence won’t be considered by the courts as they determine parenting time, division of assets, etc.

Parenting Time

It is rare that they will entirely restrict parenting time due to domestic violence. This only occurs when a judge determines that the physical or mental safety of a child is at risk. In cases where the court decides the concerns are valid, they may choose to grant supervised parenting time. Further, it is only in extreme cases where the courts will terminate a parent’s legal authority over a child.

Division of Assets 

If protective orders are in place, the court will often take steps to protect marital assets and prevent financial abuse from occurring, i.e. from the sale of marital property in an attempt to deny the divorcing spouse access to physical property or the income generated from the sale.

Generally speaking, the courts will divide assets in a fair and equitable manner. That does not mean the division will be equal. However, the courts will review the history of domestic violence and factor that into their decision when determining the best way to divide assets so that the abused spouse can move forward from the marriage in a positive direction.

Legal Penalties

Domestic violence is a criminal offense covered under the Illinois Domestic Violence Act. Criminal charges may be sought for violating it. However, these are handled by the criminal court system, not the civil court system. As such, it is up to the state’s attorney office to determine whether or not to pursue domestic violence as a criminal matter.

Should you have any questions about Domestic violence or any other Family Laws, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services.  Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.