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.
Qualities to consider when hiring a divorce attorney
Although divorce in Chicago might have special challenges, hiring a divorce attorney in any city requires an understanding of your personal goals, needs and objectives. Our goal with this article is to empower you as you seek legal counsel by sharing the qualities we feel are important for a divorce attorney to bring to you.
Each person contemplating a divorce has different needs and expectations. The divorce process can be intimidating and frightening.
When deciding upon a divorce attorney, your goal should be to retain someone who:
- has a proven history of being knowledgeable in the area of divorce law.
- who listens to your needs and the results you hope to achieve.
- who you can ask questions of, without feeling uncomfortable.
- who will include you in all decision making.
- who will keep you informed on a regular basis.
It is reasonable to expect your divorce attorney to give you personal attention and prompt responses to your inquiries.
Because you want to obtain the best result possible, you should look for someone who is pragmatic and able to creatively problem solve.
It is important that you interview the attorney in person and determine whether you will be working directly with that person or with another attorney from that firm.
It is also important for you to ascertain the attorney’s approach to a divorce case. A personal interview will allow you to decide, at the outset, whether you are comfortable with the attorney’s philosophy.
Some questions you may want answered during the interview process could be:
Does this attorney understand complex financial situations?
What kind of experience does this attorney have with diverse assets?
How will this attorney insure my interests are looked out for?
Make your own list of questions. Interview more than one attorney. You deserve to have the best representation available.
Chicago divorce lawyer helps uncover assets
As a Chicago divorce lawyer I see that, often times, one spouse alone manages the parties’ finances. Or, one party knows that an asset exists, such as a retirement account, but does not know where it is held or the value. The Illinois Supreme Court has given divorce lawyers tools with which to discover assets so that one party is not unjustly enriched to the detriment of the other. By way of example, the rules provide for the mandatory production of documents, accompanied by a signed affidavit stating that the spouse has produced all of the documents within his or her possession and control. In the vast majority of cases, there is usually a “paper trail”, which an experienced attorney can follow, to verify whether the disclosure of information is complete. If the other spouse withholds or hides information, a court has the authority to impose severe sanctions against that spouse.
An attorney is also permitted to take the deposition of a party, to obtain information. A deposition consists of the attorney asking the other spouse or a witness questions. The answers are sworn to, under oath, with a court reporter present to record the answers. Again, there are safe guards in the event that the party being asked the questions is not being truthful.
Also, an attorney has been granted the power to subpoena documents from third parties and to obtain testimony from third parties. Since most people are paid by check or their salaries are direct deposited into their bank accounts, and dividends and retirement contributions are documented, uncovering income or an asset can be as simple as obtaining the right document and following the paper trail, which is called “tracing”. Even if someone maintains a cash business, income and assets can be discovered. It may be more complicated but, nevertheless, it can be accomplished.
If you are in need of a Chicago divorce lawyer that understands divorce laws and how to use them to help their clients, please contact us.