When one spouse controls all the money in a marriage, the other spouse is left completely vulnerable. It costs money to live! If your spouse has all the money, how can you live? Does withholding money amount to financial abuse in an Illinois divorce?
Financial Abuse Is Abuse In Illinois
In Illinois, abuse is resolved by an order of protection.
“If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214
An order of protection can only be granted if there is abuse. Abuse has a very broad definition in Illinois.
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)
Withholding money could be considered harassment under the Illinois Domestic Violence Act.
“’Harassment’ means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances”
Cancelling a spouse’s credit cards is not necessary to accomplish a reasonable goal under the circumstances (you’re in the middle of a divorce)
More likely, withholding money from a spouse is probably ‘willful deprivation’ under the category of abuse
“’Willful deprivation’ means willfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm”750 ILCS 60/103(15)
Everyone, at every stage of age, health or disability requires “medication, medical care, shelter, accessible shelter or services, and food.” All of those items require money to purchase.
While an order of protection is commonly associated with the power to keep one party away from another, an order of protection can also compel behavior from one party: such as ordering financial support or remuneration.
An order of protection can “[o]rder respondent to pay temporary support for the petitioner or any child in the petitioner’s care or over whom the petitioner has been allocated parental responsibility, when the respondent has a legal obligation to support that person, in accordance with the Illinois Marriage and Dissolution of Marriage Act, which shall govern, among other matters, the amount of support, payment through the clerk and withholding of income to secure payment.” 750 ILCS 60/214(b)(12)
Parents or friends often make emergency loans to cover expenses while a spouse is withholding money. Any expenses or losses caused by withholding money can also be recovered.
“Order respondent to pay petitioner for losses suffered as a direct result of the abuse, neglect, or exploitation. Such losses shall include, but not be limited to, medical expenses, lost earnings or other support, repair or replacement of property damaged or taken, reasonable attorney’s fees, court costs and moving or other travel expenses, including additional reasonable expenses for temporary shelter and restaurant meals.(i) Losses affecting family needs. If a party is entitled to seek maintenance, child support or property distribution from the other party under the Illinois Marriage and Dissolution of Marriage Act, as now or hereafter amended, the court may order respondent to reimburse petitioner’s actual losses, to the extent that such reimbursement would be “appropriate temporary relief”, as authorized by subsection (a)(3) of Section 501 of that Act.” 750 ILCS 60/214(13)
There is a great deal of flexibility for courts invoking the Illinois Domestic Violence Act including “prohibiting abuse, neglect or exploitation; granting exclusive possession of a residence and/or personal property; forbidding damaging property ordering the respondent to stay away from the petitioner; requiring counseling, payment of support, or payment for shelter services; prohibiting owning a firearm; and granting injunctive relief to protect family members. Thus, the trial court has the ability to tailor an order of protection to address individual circumstances and needs, improve victim safety and hold the perpetrator accountable for his or her actions.” Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016
Asking for protection from financial abuse is clearly within the scope of an Illinois court.
The Illinois Domestic Violence Act references the Illinois Marriage and Dissolution of Marriage Act because there is a similar and broader statute to address temporary financial issues in the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/501.
Temporary Support In An Illinois Divorce
750 ILCS 5/501 allows for immediate maintenance (formerly known as alimony) and child support.
“Either party may petition or move for
- Temporary maintenance or temporary support, accompanied by an affidavit , accompanied by an affidavit as to the factual basis for the relief requested.” 750 ILCS 501(a)(1)
Beyond ordering payment of support, 750 ILCS 5/501 can also restrain a spouse from doing financially damaging things like cancelling credit cards or closing bank accounts.
An Illinois divorce court can issue “a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:” “restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued; however, an order need not include an exception for transferring, encumbering, or otherwise disposing of property in the usual course of business or for the necessities of life if the court enters appropriate orders that enable the parties to pay their necessary personal and business expenses including, but not limited to, appropriate professionals to assist the court pursuant to subsection (l) of Section 503 to administer the payment and accounting of such living and business expenses;” 750 ILCS 5/501(a)(2)(i)
How Soon Can I Get Temporary Support In An Illinois Divorce
Despite emergency orders of protection being, typically, granted on the same day, financial relief cannot be granted on a same-day, emergency basis.
“An emergency order may not include the counseling, legal custody, payment of support, or monetary compensation remedies.” 750 ILCS 60/217(a)
Relief from financial requested under the Illinois Marriage and Dissolution of Marriage Act may be brought to the court as a same-day emergency motion. Emergency motions are governed by local county rules in Illinois. Cook County, Illinois’ rules are exemplary.
“An emergency is defined as a sudden and unforeseen circumstance that may cause injury, loss of life, or damage to property and that requires urgent response and remedial action.” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
Financial support is not prohibited as an emergency basis in Cook County (but, oddly, requests for child support are prohibited)
“Absent the risk of imminent harm or severe prejudice, the following matters will generally not be heard as an emergency:
Motions to establish or modify custody, set child support, paternity, or visitation, unless risk of imminent harm to child” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
Even if not deemed an emergency, a motion for temporary support will be heard very quickly (in a half hour) in a summary fashion in lieu of a formal trial with evidence (which requires a judge to find a free afternoon).
“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation, except an evidentiary hearing may be held upon a showing of good cause.” 750 ILCS 5/501
How To Stop Ongoing Financial Abuse In An Illinois Divorce?
Once an order is entered requiring support or prohibiting financial abuse such as withholding money, that order must be followed.
Failure to follow the order will allow the other spouse to file a Petition For Rule To Show Cause For Indirect Civil Contempt.
A Petition For Rule To Show Cause For Indirect Civil Contempt requires the filer to swear under penalty of perjury “my ex didn’t pay me or withheld money from me contrary to the order.”
Upon establishing this prima facie evidence, the alleged contemnor must prove that they, in fact, did follow the order.
A contemnor’s failure to prove that they followed the order will result in the court issuing a “purge.” In a purely financial divorce case, the purge is always the money that the contemnor was supposed to pay or release to their ex.
Failure to pay the purge will result in a “body attachment” which is a civil order of arrest of the contemnor.
“A body attachment order has long been held an appropriate vehicle to effectuate an order of commitment after a person has been adjudged in civil contempt.” In re Marriage of Harnack, 2022 IL App (1st) 210143
Once arrested, the purge still exists and the contemnor can get out of jail upon payment of that purge.
“Whether for direct or indirect civil contempt, the order must specify what the contemnor is required to do, so that by compliance contemnor can purge himself of contempt and be discharged from jail.” Pancotto v. Mayes, 304 Ill. App. 3d 108, 112, 709 N.E.2d 287, 290 (1999)
Usually, the mere threat of jail is enough to prevent current and future financial abuse.
How To Really Prevent Financial Abuse In An Illinois Divorce
If you are totally financially dependent on your spouse, you must acquire an alternate source of funds. This is most easily done by applying for credit cards in your name alone.
With a quick online application, you’ll have multiple credit cards delivered to you within just a few days.
Any debt incurred on those credit cards before the divorce is finalized may be divided or paid by a future order of the court.
All debts incurred before the actual divorce is finalized are marital and, thus, divisible.
“For the purposes of this Act, “marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage,” 750 ILCS 5/503 (emphasis mine)
Failure to support all members of the family before the divorce will be accounted for when the final division of assets is ordered.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)(1)
If you think you are going to get a divorce start getting credit cards in your name so you can support yourself until there is an order requiring your spouse to support you.
Financial Abuse Of A Spouse Over 60 Years Old Is A Crime!
If you are over 60 and your spouse is financially abusing you, that is a crime which can be investigated by the police and/or state’s attorney’s office
“A person commits financial exploitation of an elderly person or a person with a disability when he or she stands in a position of trust or confidence with the elderly person or a person with a disability and he or she knowingly: (1) by deception or intimidation obtains control over the property of an elderly person or a person with a disability; or (2) illegally uses the assets or resources of an elderly person or a person with a disability.” 720 ILCS 5/17-56(a)
60 is not very old, but it qualifies you to be a victim of financial exploitation of an elderly person in Illinois.
“”Elderly person” means a person 60 years of age or older.” 720 ILCS 5/17-56(c)(1)
A spouse with an “elderly spouse” could easily be described as intimidating that spouse in order to financially abuse them.
“”Intimidation” means the communication to an elderly perso…that he or she shall be deprived of food and nutrition, shelter, prescribed medication or medical care and treatment or conduct” 720 ILCS 5/17-56(c)(3)
The financial abuse, itself, is the intimidation that creates the basis for a charge of financial exploitation of an elderly person.
Likewise, a spouse with a disability can also invoke the charge of financial exploitation of a disabled person under the same statute.
“’Person with a disability’ means a person who suffers from a physical or mental impairment resulting from disease, injury, functional disorder or congenital condition that impairs the individual’s mental or physical ability to independently manage his or her property or financial resources, or both.” 720 ILCS 5/17-56(c)(2)
If a spouse is completely dependent on their spouse for financial support for any other reason other than their own choice not to work, that spouse is probably disabled and allowed to invoke the charge of financial exploitation of a disabled person.
Money makes the world go round. If your spouse stops giving you money or withholds money from you, your world comes to a screaming halt. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois divorce attorney.
