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What Are My Legal Options If I am Divorcing an Abusive Spouse?

Posted on in Divorce

DuPage County family law attorney order of protection

Going through a divorce is never an easy task regardless of how you look at it or approach it. You may be second-guessing your decision and grieving the loss of your spouse, or you may find yourself in the middle of a legal battle. Even in an amicable divorce, the process can be emotionally devastating, and a contentious marriage can lead to months or even years spent arguing over legal decisions. The process becomes even more complex for spouses who are victims of an abusive relationship. The codependence that abusive relationships can create, along with the understanding that the marriage is unhealthy, can make the divorce even more confusing. The concerns can quickly escalate from “Am I doing the right thing?” to “Am I safe to file for divorce?”. For those in an abusive marriage, there are additional considerations that must be made in order to ensure that each spouse is safe and that the divorce agreement is fair to both spouses.

Identifying the Different Forms of Abuse

Many people who are in abusive relationships are unsure if what they are experiencing is truly considered abuse. While physical abuse can occur, there are other actions that are considered abusive behavior and that can keep people stuck in toxic relationships. The following are different forms of abuse and their warning signs:

  1. Physical Abuse. When the term “abuse” is used, one often imagines a person inflicting physical harm on another. Unfortunately, this is a common form of abuse that many people suffer from, especially women. Some may assume that their pain or injuries are not severe enough to be considered physical abuse; however, there are a number of ways that an individual can inflict physical abuse on you, including the folllowing actions: 

    1. Pulling hair, punching, slapping, kicking, biting, choking or smothering you

    2. Forbidding you to eat or sleep

    3. Using weapons against you

    4. Preventing you from seeking emergency services, such as medical help or protection from law enforcement

    5. Harming your children or pets

    6. Driving recklessly with you in the car or abandoning you in unknown places

    7. Forcing you to use drugs or alcohol

    8. Trapping you in your home or forbidding you from leaving

    9. Throwing objects at you

    10. Preventing you from taking prescriptions or receiving medical treatment

  2. Emotional and Verbal Abuse. This is a common form of abuse that many brush off as arguing and assume that all couples experience it. Emotional and verbal abuse is all about exerting control over a partner through words and is a bit more complex or difficult to identify than physical abuse. Examples of emotional abuse include:

    1. Insulting you, calling you names, or providing constant criticism

    2. Refusing to trust you and acting jealous or possessive

    3. Keeping you isolated from friends, family, or others

    4. Monitoring where you go, who you contact, and how you spend your time with or without your knowledge

    5. Trying to control your appearance, such as your clothes, makeup, and hairstyles

    6. Humiliating you in front of others

    7. Questioning your recollection of events, facts, or sources, also known as gaslighting, and trivializing your needs or feelings

    8. Making threats to you or your family

    9. Damaging your belongings

    10. Telling you that you are lucky to be with them and that you will never find someone better

  3. Sexual Abuse. This is another form of abuse that can be less overt than what many imagine. In addition to forcing you to have sex, the following are examples of sexual abuse:

    1. Forcing you to dress in a sexual manner that makes you uncomfortable

    2. Insulting you in sexual ways or calling you explicit names

    3. Doing anything to you while having sex without your consent, such as choking or restraining

    4. Ignoring your feelings regarding sex

    5. Intentionally giving you a sexually transmitted infection

  4. Financial Abuse. Economic abuse occurs when one exerts financial control over their partner. This is especially common in one-income households as the working spouse can assert that they should have power over the money. Examples of financial abuse include:

    1. Providing an allowance and monitoring your spending

    2. Depositing your paycheck into an account that you do not have access to

    3. Preventing you from accessing or viewing your bank accounts

    4. Preventing you from working and earning your own money

    5. Refusing to provide financial assistance for necessary shared expenses, such as clothing or food

Obtaining an Order of Protection in Illinois

If you have experienced abuse in any form, you may consider filing for an order of protection in addition to your divorce. Those who are involved in abusive relationships can often struggle to move on from their partner with the looming possibility of further abuse. The state of Illinois allows victims of domestic violence to file for an order of protection, commonly known as a restraining order, to keep them protected from their abuser. Those who are filing for divorce may request an order of protection as well. The state has certain requirements that one must meet in order to have their order approved. Orders of protection are restricted to family or household members, including blood-related family members, those who are married or previously married, those who share a residence, those who have a child together, those who are dating or used to date, and people with disabilities.

When requested, a judge will include certain provisions within an order of protection that depend on the situation at hand. An order of protection prohibits the abuser from continuing threats and abuse, bans them from living together, and orders the abuser to stay away from you and your work, school, or other specific locations. The judge may also require the abuser to attend counseling, appear in court, and hand any weapons over to law enforcement. If you and your spouse have children, these orders can also extend to include your children. For instance, your spouse may receive limited visitation rights that are outlined in the order of protection. He or she may also be prohibited from seeing your child or accessing your child’s records. 

You may be wondering what this piece of paper called an order of protection will really do for you. If your spouse violates an order of protection, he or she will be given a Class A misdemeanor, with up to 364 days in jail. A second violation is escalated to a felony. Orders of protection are not indefinite, and if you request one with your divorce, it will likely be set to end once your divorce is finalized. If you are still concerned about your safety after the papers are signed to legally end your marriage, your divorce lawyer can help you secure an extended order of protection.

Child Custody Implications

If you and your spouse are parents, it is extremely important that you are upfront about your spouse’s history of abuse throughout the divorce proceedings. In Illinois, the court typically rules to keep both parents involved in the child’s life unless they are given reason to do otherwise. The court’s job is to make decisions in the best interest of your child, and if any form of abuse is mentioned, they will make additional considerations when allocating parental responsibilities and parenting time. Before revealing your spouse’s abusive nature to the court, you should be prepared to present examples and evidence of this behavior. Without adequate proof of the abuse, your statements can quickly become a “he said, she said” situation. Any forms of evidence that you can provide, such as verbal testimonies from others, photographs of your physical injuries, or journal entries describing the situation, can help your case. In addition, voicemail messages in which your spouse is threatening or berating you as well as any video camera footage showing abuse can be the best evidence in these types of situations. 

The court can rule one of two ways: requiring supervised visitation or terminating your spouse’s visitation rights. Typically, the judge will begin by assigning supervised visitation to monitor your spouse’s interactions with your child before completely removing their rights as a parent. Supervised visitation will allow your spouse to see and spend time with your child in the presence of a court-appointed supervisor. This supervisor will take notes of their time together to ensure that your child is safe while in their presence. If your spouse is determined to be a danger to your child throughout that time, their visitation rights may be taken away.

Dividing Marital Property

The state of Illinois classifies all property and assets obtained after the start of your marriage as marital property, with equitable distribution in the instance of divorce. In other words, both you and your spouse will receive a fair amount of your marital property as determined by the court, but it will not automatically be split in half. The asset division process can be challenging under normal circumstances, but especially difficult and contentious when it comes to abusive relationships. As explained earlier, financial abuse is not uncommon and this form of abuse can translate into the asset division portion of your divorce. Your spouse may try to bully you out of your fair share of the finances. They also may have hidden assets in an attempt to keep them outside of the divorce and gain a better financial position. This is one of the many reasons why it is critical that you have your own legal representative who can advocate on your behalf. Not only do they know where to search for hidden assets and how to equitably distribute your belongings, but they are also not influenced by your spouse’s abusive tendencies. 

Contact a Cook County Divorce Attorney

If you are a victim of abuse, you may have concerns and questions about how to leave your spouse and get out of the abusive relationship permanently. However, it is important to protect yourself in every way possible, including obtaining an order of protection and securing an experienced attorney to help you with your divorce. At Weiss-Kunz & Oliver, LLC, we have over 20 years of combined large-firm experience, with a boutique firm commitment to client and case detail. Our compassionate legal team is prepared to protect you and your children so that you can get a fresh start. Call our skilled Elmhurst divorce lawyers today at 312-605-4041 to discuss the details of your situation.

 

Sources:

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

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

https://www.thehotline.org/resources/types-of-abuse/

https://illinoisattorneygeneral.gov/women/ordersofprotection.html 

 

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