How does the Domestic Violence Act apply in divorce cases?
In 1986, the Illinois State Legislature enacted the Illinois Domestic Violence Act, 750 ILCS 60/101. The purpose of the Act is to prevent a person from being harmed or abused. The Act allows a person relief through civil courts versus having to go through the criminal court system. The Act provides protection for married and unmarried parties. An action may be brought under the Act as either an independent action or in conjunction with a divorce proceeding. The Domestic Violence Act requires a lower burden of proof than does the Illinois Marriage and Dissolution of Marriage Act. In an action under the Domestic Violence Act, the Petitioner must show abuse and harassment; that there is a likelihood that the abuse will continue unless the Respondent is prohibited from those actions; and that the balance of hardship weighs in favor of the Petitioner.
When you file an action for relief under the Domestic Violence Act, you are asking the court to issue an “Order of Protection” enforceable, if it is violated, with either civil or criminal penalties. The relief requested can be for the Petitioner as well as other protected persons, such as children or disabled adults. A summary of the remedies that may be obtained under the Act, 750 ILCS 214/60(b), are:
- Prohibiting Respondent from harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation.
- Granting a Petitioner the exclusive possession of a residence.
- Placing a stay away order against a Respondent. This is an order requiring a Respondent to stay away from the Petitioner or any other person protected under the order, or prohibit the Respondent from entering or remaining at a Petitioner’s school, place of employment, and other specified places. The order can apply to physical and/or non-physical contact.
- Requiring a Respondent to receive counseling.
- Granting the Petitioner the physical care and possession of a minor child.
- Granting the Petitioner temporary legal custody. (However, if a divorce case is later filed, this remedy does not automatically grant the Petitioner temporary custody in that case, nor is there a presumption that the Petitioner should be the legal custodian in the divorce case.)
- Granting the Respondent or Petitioner visitation.
- Prohibiting the Respondent from removing or concealing a minor child.
- Ordering a Respondent to appear in court, alone or with a minor child, to prevent that person from removing or concealing a child; or ordering the return of a child to the custody or care of the Petitioner; or ordering a child and/or the Respondent to attend a court ordered interview or examination.
- Granting the Petitioner possession of personal property.
- Granting the Petitioner protection of property.
- Ordering the Respondent to pay support.
- Ordering the Respondent to pay losses.
- Prohibiting the Respondent from entering a premises.
- Prohibiting the Respondent from possessing firearms.
- Prohibiting the Respondent’s access to records.
- Ordering the Respondent to pay the cost of shelter services.
- Ordering other Injunctive Relief against the Respondent.
Many of these remedies can also be obtained under the Illinois Marriage and Dissolution of Marriage Act. However, it is usually easier to prove the necessary elements in an Order of Protection proceeding than under the divorce statute.