The Impact of Domestic Violence on Divorce

 Posted on February 09, 2017 in Domestic Violence

Leaving a marriage with domestic violence requires planning and support to ensure the victim and his or her children are safe. Usually, a victimized spouse must leave in secret and must also leave most possessions behind, so the abusive spouse does not discover the plan in advance. The law recognizes that domestic violence is an all-too-common issue in marriages, and therefore seeks to make keeping an abuser away easier for victims and their families.

In 2014, Illinois law enforcement received more than 65,000 calls related to domestic violence. Hence, knowing how to get retain legal protection against an abusive spouse, as well as how the Court views this issue in divorce/child custody cases, is crucial.

Orders of Protection

Orders of protection are Court orders that prohibit and/or restrict a person's access to a spouse or other family member to prevent additional violence or injury when there is evidence of abuse. While most people associate domestic violence with physical abuse, controlling someone through fear — the motivation behind domestic violence — does not require the raising of a hand. Consequently, in addition to physical and sexual abuse, Illinois law includes threats of violence and harassment designed to evoke emotional distress under the umbrella of domestic violence.

Any individual who is the victim of abuse by a family or household member, or on behalf of a minor, is entitled to petition for an Order of Protection. The petition is filed with the police department, which is quickly followed by a hearing before a Judge (often the same day). The Judge will decide if enough evidence exists to justify issuing a Temporary Order of Protection.

Next, a more involved hearing is held a few weeks later. The hearing is usually attended by the person accused of domestic violence to determine if the order should remain in place. Courts are granted the authority to impose a significant number of restrictions to prevent further violence. Restrictions include the following:

• Prohibiting the abuser from entering or remaining in the family residence, and granting the petitioner the exclusive right to occupancy;
• Ordering the abuser to stay away from the petitioner's work, school and other places frequently visited when the petitioner is present;
• Ordering the abuser to return the petitioner's personal property and/or prohibiting the abuser from disposing of the petitioner's property;
• Temporarily restricting or prohibiting the abuser from exercising parenting time or other parental responsibilities, which is typically reviewed and finalized in later/concurrent divorce or child custody proceedings; and
• Ordering the abuser to pay temporary spousal and/or child support.

Emergency Orders of Protection are valid for at least 14 days, and up to 21 days. The validity of more permanent orders of protection is at the discretion of the Court and may be valid for up to two years, subject to renewal. These orders should be kept with the victim at all times in case of a violation, as well as filed with a school if a child is impacted. Violations are subject to jail time and fines.

Child Custody

Domestic violence has the greatest impact on the allocation of parenting time and responsibility by the Court. Evidence of such abuse can substantially affect the extent to which a parent is granted parenting time and the authority to make decisions on behalf of the child. While Courts are reluctant to completely deny a parent time with his or her child, they can order supervised visitation. Complete denial of access typically requires evidence that the parent poses a physical or mental health risk to the child.

In addition to child custody decisions, domestic violence also influences the division of assets. A history of domestic violence can lead a Court to award a larger share of the marital estate to the abused spouse so he or she has greater resources to start over.

Retain Legal Assistance

Domestic violence is a very serious issue that requires the support of a strong advocate in order to obtain the protection needed to escape further abuse. The Law Office of Nicholas W. Richardson, P.C. understands what is at stake in these situations. Attorney Richardson will take the necessary steps to provide the appropriate assistance. If you live in northwest Chicagoland, contact skilled Palatine family law attorney Nicholas W. Richardson today to schedule your free consultation.

Resources:

http://www.isp.state.il.us/crime/domesticviol.cfm#DVYOU

https://www.ncadv.org/files/Illinois.pdf