Whenever I tell people I am a divorce lawyer they say, “You must have a lot of stories.”
I do have a lot of stories, but I cannot tell any of those stories because of attorney-client privilege and general human decency.
Sadly, human decency can be rare in a divorce. In fact, bad behavior is rampant during divorce litigation. The opposing side’s prior poor behavior make it very tempting to argue, “Oh yeah? Well, judge, you’ll never guess what they did before that.”
Not surprisingly, seasoned divorce judges don’t take give much weight to tattle-tales and one-up-manship. Neither does the Illinois Marriage And Dissolution of Marriage Act. Illinois divorce law and procedure simply does not care about the bad behavior of the other side.
Illinois Divorce Law Does Not Look At Bad Behavior Of The Parties
Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d). (emphasis mine)
For support, “the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)
Likewise, Illinois child support is a mathematical calculation without consideration of either parent’s character purely “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)
Even time with children does not consider bad behavior of a parent…if it doesn’t affect the child. “In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
Illinois divorce courts ignore bad behavior and focus on the best interest of the children.
There is a “well-established principle under both the Illinois [Marriage And Dissolution Of Marriage Act] that the children’s interests must take precedence over ruffled feelings of parents and even, on occasion, the authority of the court” In re Marriage of Weinstein, 408 NE 2d 952 – Ill: Appellate Court, 1st Dist. 1980
This really doesn’t make sense. Does character not count in the halls of justice? If someone accuses their spouse of some malevolent act when they, themselves, are guilty of the same act should they not forfeit the right of accusation? Perhaps!
Unclean Hands In An Illinois Divorce
Illinois common law includes the concept of “clean hands” which effectively requires you to be a saint before you can call someone a sinner.
The clean hands doctrine is “the principle that a party cannot seek equitable relief or assert an equiable defense if that party has violated an equitable principle, such as good faith. Such a party is described as having ‘unclean hands’” Black’s Law Dictionary (11th ed. 2019)
If you are found to have “unclean hands” you become ineligible for any relief you were seeking.
“The doctrine of unclean hands applies if a party seeking equitable relief is guilty of misconduct, fraud, or bad faith toward the party against whom relief is sought and if that misconduct is connected with the transaction at issue in the litigation. Though the parties do not recognize it, the unclean hands doctrine bars only equitable remedies and does not affect legal rights.” Zahl v. Krupa, 850 NE 2d 304 – Ill: Appellate Court, 2nd Dist. 2006
“[A]ccording to the doctrine of “unclean hands,” if plaintiffs were guilty of misconduct, the trial court could bar them from recovering the interest, even if they were otherwise entitled to it.” Long v. Kemper Life Insurance Co., 553 NE 2d 439 – Ill: Appellate Court, 2nd Dist. 1990
“The doctrine of “unclean hands” precludes a party from taking advantage of his own wrong. The doctrine applies if the party seeking equitable relief is guilty of misconduct, fraud or bad faith toward the party against whom relief is sought if that misconduct is connected with the transaction at issue.” Long v. Kemper Life Insurance Co., 553 NE 2d 439 – Ill: Appellate Court, 2nd Dist. 1990
This concept doesn’t really fit in divorce law, however. Because the clean hands concept is for equity…and most of Illinois divorce law is not equity law.
“The [clean hands] doctrine is based on the principles that “he who seeks equity must do equity”” In re Estate of Opalinska, 45 NE 3d 687 – Ill: Appellate Court, 1st Dist., 4th Div. 2015
Unclean hands require that the party be requesting an equitable remedy. An equitable remedy is a “remedy, usually a nonmonetary one such as an injunction or specific performance obtained when available legal remedies, usually monetary damages, cannot adequately redress the injury” Black’s Law Dictionary (11th ed. 2019)
Equity law is law where there is no monetary compensation. For example, if someone stole your one-of-a-kind Faberge egg, equity would require that they return the Faberge egg to you rather than pay you the unique item’s value in lieu of the actual Faberge egg.
Illinois divorce law is all about money in lieu of performance. Assets get divided by value in an Illinois divorce. Support is calculated based on income money not performance of some specific task in an Illinois divorce.
“The fact that [a spouse] is not seeking equitable relief, but rather the enforcement of legal rights under the dissolution judgment, is fatal to [the other spouse’s unclean hands] argument.” MARRIAGE OF HARNACK v. FANADY, Ill: Appellate Court, 1st Dist., 3rd Div. 2021
The whole idea of preventing the calling-out of bad behavior because of prior bad behavior of the accuser carries with it a lot of bad incentives. It creates a race to the court house to tell on the other spouse before they tell on you. Meanwhile, the spouses are supposed to be raising kind, generous citizen children together.
So, Illinois courts will simply decline to invoke the unclean hands doctrine if the court does not think a finding of unclean hands will move the case forward.
“The “unclean hands” doctrine is not a judicial straight-jacket, is not favored by the courts, is not intended to prevent equity from doing complete justice, and its application is a matter for the sound discretion of the trial court.” Mascenic v. Anderson, 369 NE 2d 172 – Ill: Appellate Court, 1st Dist., 2nd Div. 1977
Unclean Hands And Actual Restraining Orders
Unclean hands are for equitable remedies like restraining orders. In divorce, restraining orders between spouses are common.
It may make sense for a party to say, “I shouldn’t have an order of protection against me! They abused or harassed me first!”
But whoever gets an order of protection first…is the only person who can get an order of protection.
In Illinois “[m]utual orders of protection are prohibited.” 750 ILCS 60/215
So, hopefully, a spouse would be able to keep a malicious order of protection at bay with an unclean hands defense. Probably not, though.
Most orders of protection are effectively synonymous with no stalking orders. No stalking orders cannot be defended by an accusation of unclean hands.
“Section 5 of the [Stalking No Contact Order] Act explicitly states that one of its purposes is that “[a]ll stalking victims should be able to seek a civil remedy requiring the offenders stay away from the victims and third parties.” 740 ILCS 21/5 (West 2016). Section 10 of the Act defines stalking as “engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or the safety of a third person or suffer emotional distress.” 740 ILCS 21/10 (West 2016). Section 80(a) provides that “[i]f the court finds that the petitioner has been a victim of stalking, a stalking no contact order shall issue” (emphasis added). 740 ILCS 21/80(a) (West 2016). The Act contains no requirement or even a suggestion that a victim of stalking must have “clean hands” to receive a stalking no contact order, providing instead that all stalking victims are entitled to no contact orders.” Ivancicts v. Griffith, 2017 IL App (4th) 170028
So, wash your hands of the unclean hands doctrine. It does you no good in any Illinois domestic relations court.