Divorce can be difficult and stressful under the best of circumstances. Domestic violence–or even allegations of domestic violence–can trigger additional issues and challenges. If you are the victim of domestic violence, you may need a protective order before or at the same time you file for divorce, to secure temporary possession of your home and protect against any backlash the divorce petition may trigger.
On the other hand, there are aspects of a divorce case that are largely unchanged in a case involving domestic violence. Of course, the best source of information about how domestic violence may impact your Illinois divorce case is always an experienced divorce lawyer. In this post, we’ll give you an overview of how domestic violence allegations may impact a divorce case.
Grounds for Divorce in Domestic Violence Cases
In Illinois, divorce is “no-fault,” which means neither party has to prove that the other did something wrong to obtain a divorce. Instead, the person petitioning for divorce alleges simply that the marriage is “irretrievably broken.” So, while domestic violence may impact other issues in a divorce case, it generally plays no role in securing a divorce.
Property Division
Property division in Illinois is based on an equitable division model. This model considers actions like one party wasting or hiding assets, but Illinois law doesn’t factor in general bad behavior in dividing assets. So, any impact domestic violence has on property division is typically indirect. For example, an abusive spouse who didn’t permit the abused spouse to work outside the home may have created a situation in which the parties’ earning capacity is very different. Protective orders, which are discussed in more detail below, may also impact property distribution–at least in the short term.
Child Custody and Visitation
Domestic violence may have a significant impact on the division of parenting time and related arrangements. While Illinois courts typically favor both parents’ substantial involvement and will lean toward sharing parenting time as fully as possible, domestic violence introduces special considerations. Some of these factors may include whether the abusive spouse has been abusive or threatening to the children, whether the children have witnessed abuse and may feel unsafe alone with the abusive spouse, and the seriousness and one-time or ongoing nature of the abuse, the age of the children.
As with property division, the goal isn’t to punish the abusive spouse for bad behavior but to determine whether and how any abuse allegations impact the statutory analysis. Violence is one factor to be considered in a long list of considerations the Illinois statute provides to help the court determine what is in the children’s best interests.
Domestic abuse can also impact the logistics of shared parenting responsibilities and time. Courts typically encourage parents to work together to make decisions for their children and coordinate things like exchanging children and information about school progress, sports, and other extracurricular activities, and medical issues. But, in a domestic violence situation, that type of coordination and cooperation may not be possible or desirable. A protective order may even prohibit it. So, the court may have to take a more active role in creating channels and processes to manage these issues.
Negotiations
Illinois courts generally encourage parties to agree on issues such as shared parenting time and division of debts and assets. It may be difficult or impossible for the parties to speak directly in cases involving domestic violence–a protective order may even prohibit it. There is also a risk that the party who has been the victim of domestic violence may be intimidated by the other, leading to concessions he or she wouldn’t otherwise make.
In this situation, it is more important than ever to have a trusted legal advocate to negotiate on your behalf or present evidence to the court in a contested hearing if you cannot reach an agreement.
Orders of Protection
An order of protection may be entered at any time, before, during, or after divorce. Often, an emergency protective order is entered as soon as the petition is filed. However, these orders are very short-lived and are only intended to protect in the brief period between the petition’s filing and the hearing on the protective order.
Suppose you have been served with a protective order and are in the process of or leading up to divorce. In that case, it’s important to be aware that the domestic violence allegations and protective order may have an impact on your divorce case, including how often and under what circumstances you can see your children. You’ll want to consult with an experienced Illinois divorce attorney as quickly as possible.
It’s also important to ensure that you fully understand how Illinois protective orders work. For instance, orders of protection are one-way in Illinois, which means that you may be prohibited from contacting your spouse, but he or she may be free to contact you. That creates pitfalls, you might not recognize, especially if you are in the midst of attempting to negotiate property division and other issues.
Peskind Law Firm Can Help
Peskind Law Firm has extensive experience with complex divorce issues, including domestic violence cases. If you’re considering filing for divorce or your spouse has filed, you can’t afford to delay. Schedule a consultation by calling 630-444-0701 or filling out our contact form.