Divorce and Domestic Abuse

 Posted on June 30, 2017 in Divorce

Divorce is hard enough. When you are seeking a divorce as a way to escape a domestic abuser, it can be even worse. Domestic violence causes harm to countless Illinois families each year, but without the right information, it can be extremely difficult to get out of a bad situation.

Ensuring Physical Safety

In Illinois, it is possible to file for relief either under the Domestic Violence Act (DVA) or under both the DVA and the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in conjunction. Your abuser must either be related to you by blood or a current or former spouse or romantic partner. If you choose to bring your action under the IMDMA, the standard of evidence will be higher; under the DVA, a person must simply show that they have been subjected to harassment and abuse and that the harassment will continue if their spouse is not prevented by a judgment from doing so.

If you apply for an Order of Protection via either avenue, you may request both relief and appropriate remedies. Some of the most common include:

• Exclusive possession of a residence, usually the marital home;
• Mandating that the alleged abuser receive counseling and/or stay away from the alleged victim;
• Child custody being given to the non-abusive parent;
• Requesting sufficient spousal support and/or child support in order to keep the children in a manner to which they are accustomed; and
• Regulating or prohibiting the alleged abuser’s right to own dangerous weapons.

It is up to the court to decide on a case-by-case basis which remedies will be granted, if any. However, if cause can be shown, any or all of them may be granted by the family court.

Child Custody

By far the most serious concern in many divorce cases that involve domestic violence is that of parental rights custody. As most courts are, Illinois family courts are firmly on the side of finding a parenting agreement that serves the best interests of the child. While most of the time, Illinois courts are very loath to entirely refuse visitation rights to a parent, the time when they will most often do so is when one or both parents are abusive. At the beginning of every custody case, each parent must advise the court as to any proceedings pending regarding domestic violence, orders of protection and the like, and if any exist, they will play a role in determining a parenting plan.

A judge will deny parenting time if he or she cannot be adequately convinced that the physical, mental, emotional and sexual health of the child can be guaranteed. Supervised visitation is an often-used middle ground, where parents may interact with their children at a neutral location or the child’s primary home, with appropriate oversight. In extreme cases, the family court may terminate a parent’s rights, granting all legal authority over that child to the other, non-abusive parent.

Work With a Legal Professional

Most people seek legal assistance when going through a divorce, but it is doubly important to do so if you have to deal with an abuser. A quality family law attorney can help make the process easier. Contact an experienced Naperville divorce lawyer to discuss your situation today. Call 630-352-2240 for a free, confidential consultation.

Sources:

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

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