How Can Domestic Violence Affect My Illinois Divorce?

 Posted on August 17, 2020 in Legal Questions

In most divorce cases today, the courts urge the couple to attempt to work together to come to an agreement on the issues pertaining to the divorce before they take the issues to trial. While there are many reasons for this, the biggest reason is that giving both parties negotiating power also means they are more likely to follow certain orders after the divorce is finalized. For many couples, no court intervention is needed because they are able to negotiate a divorce agreement with the help of their attorneys or a mediator. However, some cases have circumstances in which you may need the help of the court to complete your divorce.

One of those circumstances is the presence of domestic violence in the home. Domestic violence is one of the most complicated social and societal issues that exists throughout the United States. According to the National Domestic Violence Hotline, more than 12 million men and women experience some form of domestic violence each year. Most people think of domestic violence as simply being an act of violence, but for most perpetrators, it is more about holding power over the victim. Domestic violence is a serious issue and it can also have an extremely negative effect on your divorce.

What Is Domestic Violence?

Domestic violence or abuse is a term that encompasses a variety of harmful and hurtful behaviors and can be found in families from many different racial, educational, religious, and socioeconomic backgrounds. Many people tend to focus on the violent aspect of domestic abuse, but the main and most important component of domestic violence and domestic abuse is control. A person does not just commit acts of domestic violence or abuse every once in a while because they just “lose their temper” sometimes. A person commits acts of domestic violence and abuse to attempt to gain control over the victim through acts of guilt, shame, fear, and intimidation.

Illinois Legal Definition

Each state creates its own laws pertaining to domestic violence and abuse, how it is prosecuted, and how it can affect other legal proceedings, such as divorce. According to the Illinois Domestic Violence Act of 1986, domestic violence is defined as any act of abuse that is perpetrated against a family or household member. Under Illinois law, an act of abuse is defined as physical abuse, intimidation of a dependent, harassment, interference with personal liberty, or willful deprivation.

The state of Illinois also recognizes that domestic violence can occur between many people and not just those who are married or dating. This is why the law is worded to apply to “family and household members” because domestic violence can occur between any combination of related people, including:

• Parents and stepparents
• Children, siblings, and step-siblings
• Spouses and former spouses
• People who currently do or used to share a home
• People who are currently or used to be married
• People who are dating or use to be dating
• People who have a child in common

Am I Divorcing an Abusive Spouse?

It is important to note that not all abuse and acts of domestic violence are acts of physical abuse. Sometimes, much of the damage that is being caused by the abuser is invisible from an outside glance and only noticeable after it has been going on for months. There are many different types of abuse that exist and abusers typically use a variety of forms of abuse to gain and maintain control over their victim. Recognizing the signs of abuse is the first step to filing for divorce with a violent spouse.

Physical Abuse

The first thing that often comes to mind when thinking about domestic violence is physical abuse. Physical abuse is any act of physical force that is used against you by your spouse and is intended to injure or endanger you. It is important to note that physical abuse is still abuse even if it seems “minor” or not as serious as other domestic violence situations you have heard about. Physical abuse can manifest into anything from slapping, hitting, pinching, hair pulling to punching, choking, forcing you to use drugs or alcohol, or even hurting your children.

Sexual or Reproductive Abuse

Sexual/reproductive abuse is also present in some married couples’ domestic violence cases. Sexual abuse is any situation in which you may be forced to participate in unwanted, dangerous, and degrading sexual activity. This is true even if you have consensual sex with your abuser and are in a dating relationship or you are married. Examples of sexual/reproductive abuse can include forcing you to have sex against your will, hurting you during sex, reacting negatively or continuing to pressure you if you decline sex, lying about or removing a method of birth control during sex, or controlling your decisions about birth control.

Emotional Abuse

Have you ever questioned your own reality or things that you know to be true? If so, this could be a sign that you are a victim of “gaslighting” a common form of emotional abuse that is used to control people in a relationship. Emotional abuse is another common form of abuse that appears in domestic violence situations and can sometimes be the most difficult to identify. Often, abusers are charismatic to confuse even the victims themselves. Examples of emotional abuse can include calling you names, monitoring where you go and who you spend time with, insulting you, humiliating you, blaming you for the abuse, and accusing you of cheating.

Stalking or Harassment

Another form of domestic violence or abuse could be any type of stalking or harassment committed against either spouse.

Protecting Yourself and Your Family

If you are experiencing abuse from your spouse or there has been a history of domestic violence issues in the family, you may find it helpful to speak with a divorce lawyer about filing a petition for an order of protection. An order of protection, also known as a restraining order, is a court order that can require your spouse to do certain things and prohibit him or her from doing other things. Having an order of protection in place when you begin your divorce can be helpful, especially if you have a history of domestic violence issues in your family.

Help from an Order of Protection

Orders of protection are not something that are just handed out to anyone. There are steps you must take to receive an order of protection against a spouse who you believe is a danger to you and/or your children. Our attorneys have helped many clients successfully obtain orders of protection against abusive spouses to protect themselves and their children throughout their divorce process.

In the state of Illinois, an order of protection can be a helpful tool to protect yourself and your children from your spouse. Orders of protection typically include certain things that the abuser is required to do, such as:

• Stay away from you and your children
• Stay away from your home, your work and your children's’ schools
• Attend counseling
• Appear in court
• Return certain property to you
• Pay child support
• Surrender his or her firearms

An order of protection can also include things that an abuser is prohibited from doing, such as:

• Continuing further abuse
• Living in your shared residence
• Hiding your child from you or removing your child from the state
• Accessing your child’s school, medical, dental or other records
• Damaging, destroying or selling certain property of yours

Domestic Violence and Child-Related Issues

If you have children with your spouse when you divorce, you will also be required to discuss and take care of multiple issues pertaining to the children before you agree to a plan. The issues that relate to the children, such as parenting time and allocating decision-making responsibilities, are always some of the most highly-contested issues in the divorce process. When you have an abusive and controlling spouse present in your familial situation, those decisions can become even more contested. The first thing you should do is bring the abuse to the attention of your attorney and to the judge that is assigned to your case. Once the judge is aware of the abuse that is taking place in the home, they can make their decisions pertaining to the divorce accordingly.

Effect on Parenting Time

According to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), every divorce decision that is made that has anything to do with the children is made with the children’s best interests in mind. When it comes to parenting time, Illinois courts presume that it is in the child’s best interests to have parenting time with both parents. However, the court will place restrictions on a parent’s parenting time if the court finds that spending time with the child would endanger the child’s physical, mental, emotional, or moral wellbeing.

The types of restrictions that are placed on that parent’s parenting time will be left up to the judge’s discretion. The judge will likely look at a variety of factors to determine the best course of action, including how many times the abuse has occurred, whether or not criminal convictions have come of the abuse, the nature of the abuse and the severity of the abuse. The restrictions could be various different things, such as requiring a third-party to be present during supervised visitation and not disclosing the residential address of yours and your child and requiring the visitation to take place elsewhere.

Effects on Decision-Making Responsibilities

Domestic violence is a serious crime that is harmful to the entire family. Illinois family courts know this and take this into consideration when making decisions during divorce proceedings. In some cases, domestic violence may have such a long history and be so extensive that the judge may decide that it is in the child’s best interests to have his or her abusive parent’s parental rights terminated. When a parent’s rights are terminated, this means they no longer have any legal rights to parenting time or decision-making responsibilities, nor do they have an obligation to provide child support. This option is typically only utilized in situations of extreme abuse.

Get in Touch with a DuPage County Divorce Lawyer Today

Getting a divorce is not a process that just happens overnight. For most people, getting a divorce can take a few months, if not at least a year to complete. If you are experiencing domestic violence in your household, you should begin talking with a knowledgeable Elmhurst, IL divorce attorney as soon as you can. At Weiss-Kunz & Oliver, LLC., our team of Illinois divorce lawyers can help you file a petition for an order of protection against your spouse so you can focus on your priorities in your divorce. To schedule a free consultation, call our office today at 312-605-4041.

Sources:

https://www.thehotline.org/resources/statistics/

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

https://www.isp.state.il.us/crime/domesticviol.cfm

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2100&ChapterID=59

https://www.thehotline.org/is-this-abuse/abuse-defined/

https://illinoisattorneygeneral.gov/women/victims.html