Divorcing Due to Domestic Violence? What You Should Know

Divorcing Due to Domestic Violence? What You Should Know

October is Domestic Violence Awareness Month with Break the Cycle and the Domestic Violence Awareness Project. The Center for Disease Control estimates that 42 percent of women and 26 percent of men in Illinois will be harmed by a partner. The pandemic only made the situation worse for many victims as domestic support hotlines saw increases in calls and texts for help.

As with an allegation of child abuse or neglect, police take reports of domestic violence very seriously. Divorce is certainly an option that may bring a layer of distance and protection for victims. But the process can also be emotionally taxing and pose extra complications during the proceedings. People in an abusive marriage need to know that the courts are set up to handle these issues – and to work with an attorney who can help them navigate that system.

A Court Order May Protect You from Spousal Violence

First, know that someone accused of domestic assault or spousal abuse can face immediate consequences, with or without a divorce. If you’ve been the victim of abuse by your spouse, issuing a court order can be a crucial first step in reducing their access to you so you aren’t trapped in an abusive situation. The Illinois Domestic Violence Act is set up to enter court orders and enforce them without delay.

In addition to protecting the victim, court orders often address these and other common concerns related to domestic violence:

  • Fear of losing a child
  • Retaliation by the other spouse
  • Housing accessibility and financial concerns

How Domestic Violence May Impact Your Divorce Case in Illinois

In the past, a divorce was considered either fault-based or “no-fault.” Evidence of abuse or mistreatment in your marriage may impact your parental rights agreement, including the abuser’s visitation rights, but it’s not necessary to file a fault-based divorce to address these issues during the proceedings.

The decision on how to file depends in part on your marriage date. For couples who married after January 1, 2016, when Illinois became a no-fault state, a fault-based filing won’t likely be an option. The state eliminated all fault-based grounds for divorce, including abandonment, adultery, and mental cruelty. Your lawyer will help you decide how to file.

This decision is important because it generally affects how much personal information you have to disclose to the court. If you allege that abuse by your ex caused your breakup, you’ll be expected to present evidence such as witness testimony, phone or police records, and photos in court. The judge might also require you to testify or file an affidavit to back up your accusation.

What’s in the Order of Protection

You don’t need to wait for the court hearing to obtain an order to protect yourself from further domestic violence. The purpose of an order of protection is to provide protection against threats and abuse – such as physical abuse, intimidation, and harassment – and to prevent someone from making contact with a victim at school or work.

There are three types, depending on where you are in the process:

  1. Emergency Order of Protection – covering the time period before a respondent is able to be properly served.
  2. Interim Order of Protection – covering the period between when a respondent is served and when a final hearing has taken place.
  3. Plenary Order of Protection – the final order given by the court after a full hearing.

In Illinois, a restraining order is a more general form of protection. However, orders of protection are specifically designed to prevent domestic abuse. They have stiffer penalties when disobeyed and are more easily enforceable, so they are potentially more effective at protecting victims than a restraining order.

What Might Happen at the Divorce Proceedings?

Let the court clerk know beforehand if you’re worried about seeing your spouse during a hearing to avoid a face-to-face encounter. The other party can dispute the need for a protective order, in which case both sides may be expected to present their positions before the judge makes a decision. In this case, the court might be willing to make alternative arrangements to avoid a meeting in person.

A history of violence might influence a judge’s decision regarding spousal maintenance and other aspects of the divorce agreement. However, many factors can affect the financial decisions made in a divorce case. An accusation of abuse doesn’t guarantee they will be made in your favor, which is why it is so helpful to work with someone familiar with domestic abuse cases and the divorce court system.

Sometimes, in the heat of a divorce, a spouse will make a false or vindictive allegation of domestic violence. Doing so is considered an abuse of both the legal system and the person who was falsely accused. Family lawyers are available to assist in these situations, as well.

At the Law Offices of David A. King P.C., we specialize in all types of divorce cases, including ones in which one party has been accused of abuse. Contact us to schedule a consultation: (630) 504-7210. We serve throughout DuPage, Cook, Kane, and Will Counties.

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