Domestic violence causes serious harm, danger, and trauma to spouses and children in families. Many spouses getting a divorce because of domestic violence they suffered wonder how it will impact the divorce case. Because Illinois is now a no-fault divorce state, a spouse cannot file for a divorce on the grounds of domestic violence. However, domestic violence may still impact certain aspects of the divorce proceedings.
Domestic Violence in Illinois Law
Illinois’ legal definition of domestic violence is abuse enacted against a family member or person living in the same home. An act of abuse includes:
- Physical abuse
- Intimidation
- Deliberate deprivation
- Interference with personal liberties
- Harassment and stalking
- Emotional or verbal abuse
- Sexual or reproductive abuse
Domestic violence under Illinois law can happen between close relationships such as:
- Spouses and ex-spouses
- Romantic or sexual partners or ex-partners
- Parents and children
- Stepparents and stepchildren
- Siblings and stepsiblings
- Those who share a home
- Those who used to share a home
- People who share a child in common
How Domestic Violence Impacts Property Division
Under Illinois’ no-fault divorce filing law, a spouse must file under irreconcilable differences. Illinois law prevents a judge from dividing property differently because of an outside fault. However, the judge can look at other factors when determining property division, such as the presence of a protective order or evidence of financial abuse.
A judge can determine that a spouse requires more financial assistance if the other spouse was financially abusive and dissipated marital assets prior to divorce. A protective order can also prevent an abusive spouse from dissipating or selling marital assets.
How Domestic Violence Impacts Child Custody and Visitation
A divorce involving domestic violence most impacts decisions for child custody and parenting time. Any divorce has to determine issues surrounding custody, but those decisions are much more contentious in a divorce where there has been domestic violence. You and your attorney must prove that domestic violence occurred before such issues can impact the judge’s decision on custody.
In many situations where one parent is accusing the other of domestic violence, a guardian ad litem will be appointed to the child or children. This may also be the case if one parent has a protective order against the other parent, and children are listed as protected parties. The guardian ad litem is responsible for ensuring the children’s interests remain the main priority of a custody case and looks into claims of domestic violence against the children.
If the court determines that domestic violence has taken place, it will affect the following:
- Parenting Time
Domestic violence by one parent will affect parenting time and visitation. The court will likely restrict the parenting time of the abusive parent but not eliminate their right to visitation.
Illinois courts assume it’s in the child’s interests to spend time with both parents unless it threatens the child’s emotional and physical health. If that is the case, the court will allow only supervised parenting time with that parent. In extreme circumstances, the court will restrict the abusive parent’s parenting time completely.
- Child Custody and Legal Decisions
The Illinois court will likely provide sole legal and physical custody to the other parent if one of the following is true:
- The abusive parent was abusive and threatening toward the child
- The child witnessed the parent abuse the other parent
- The type of domestic abuse is severe and ongoing
When the other parent is provided with greater custody and parenting time, they are also likely to receive greater child support payments. However, in extreme cases, the court will terminate the parental rights of an abusive parent. This means they have no parental right to parenting time, custody, and no responsibility to child support.
Order of Protection
A protective order can help keep you and your children safe from violent and abusive behavior. If you’re worried about immediate violence or danger from your spouse, you can file an order of protection against them, which may force them to:
- Move out of a shared home
- Stay away from your home, business, and schools
- Stop any future abuse
- Pay child support
- Return property
- Give up firearms
Your spouse can face criminal charges if they violate these protections.
Criminal Charges
Domestic violence is a criminal offense. So is violating the restrictions put in place by a protective order. These charges are made in criminal court, not civil court, where divorce takes place. You can file these charges against your spouse.
FAQs
Q: How Does Adultery Affect Divorce in Illinois?
A: Because Illinois is a no-fault divorce state, you can only file divorce on the grounds of irreconcilable differences. Misconduct such as adultery does not impact any decisions made in a divorce. An exception is if your spouse took out marital assets to pay for their affair. The judge may take this into account when determining which spouse needs more financial assistance after divorce.
Q: Is Mental Cruelty Allowed in Divorce in Illinois?
A: Mental cruelty and emotional abuse between spouses will not affect how an Illinois court divides property, awards support, or assigns parenting time. This is because Illinois is a no-fault state, and divorce can’t be filed based on fault. However, an emotionally abusive parent can expect limited decision-making or legal custody of their children.
Q: How Do I Protect Myself in a Divorce in Illinois?
A: If you are the victim of abuse or domestic violence in a marriage, it’s in your interests to file a protective order in addition to a divorce. An attorney with experience in filing these can help your request the protections you need. Violating the rules of the protective order is a Class A misdemeanor.
Q: What Is Considered Spousal Abandonment in Illinois?
A: Also called unexplained absence or willful desertion, spousal abandonment is when a spouse chooses to leave their spouse and family. They also stop providing any emotional, physical, or financial support to their family. To file a divorce in Illinois, you don’t need to prove fault or prove spousal abandonment.
Stange Law Firm: Family Violence and Divorce Attorneys
In order to have the court in Springfield, IL make decisions based on the presence of domestic violence, you need an effective attorney to prove that domestic violence took place. Contact a family violence and divorce attorney today.
