Legal harassment in an Illinois divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Harassment And Divorce In Illinois

Legal harassment in an Illinois divorce

People who are getting divorced do not like each other. That dislike can sometimes manifest into behavior that can be characterized as harassment.

Harassment exists on a spectrum from physical violence to mere annoyance. “Harassment is the result of intentional acts which cause another person to be worried, anxious, or uncomfortable. Harassment can therefore occur even if there is no overt act of violence.” In re Marriage of Blitstein, 569 NE 2d 1357 – Ill: Appellate Court, 2nd Dist. 1991 (citations ommitted)

Even when a divorce starts, the parties are put on notice by the language in the summons “restraining both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party” Ill. S. Ct. R. 101(e)(1)

When faced with harassment from a spouse or ex-spouse, the victim of the harassment can turn to the Illinois courts to stop the harassment and prevent future harassment.

Temporary Motions And Harassment In An Illinois Divorce

If either party has already filed a petition for dissolution of marriage in an Illinois court, the victim of harassment can file a motion for temporary relief at any stage of the active divorce proceeding.

The Illinois statute allows for “a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:

enjoining a party from striking or interfering with the personal liberty of the other party or of any child;” 750 ILCS 5/501(a)(2)(iii)

Actual “striking” is not necessary in order to get a restraining order. Any interference with “personal liberty” is sufficient.

The Illinois statute says “Interference with personal liberty” means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.” 750 ILCS 60/103(9)

If the harassing spouse’s behavior is too subtle to fit the definition of “Interference with personal liberty” then you still can ask for a temporary restraining order based on the vague prospect of the court “providing other injunctive relief proper in the circumstances” 750 ILCS 5/501(a)(2)(iv)

No matter how you request relief from harassment, you will have to include an affidavit explaining what facts led you to file the motion for a temporary restraining order and you must swear to those facts.

“[W]henever in this Code any…affidavit, [is] made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury” 735 ILCS 5/1-109

If the restraining order is granted, the harassing spouse better stop their harassment or the victimized spouse can file a Petition For Rule To Show Cause to hold the harassing spouse in indirect civil contempt.

“A court is vested with inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings.” People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d 700, 710 (1996).

Typically, this means the court will merely tell the harassing spouse to knock it off and then allow the victimized spouse to ask the court to award the victimized spouse attorney’s fees from the harassing spouse

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750 ILCS 508(b).

Furthermore, all restraining orders are temporary in nature and thus expire when the divorce is finalized. A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

Attorney’s fees and a scolding aren’t likely to dissuade most harassers. The court has the power to put the harasser in jail for violating “dignity and authority of the court” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 173 N.E.2d 417 (Ill. 1961)

This, however, turns the contempt proceeding into a criminal proceeding which means the right to a lawyer, etc. If the contempt is going so far as to transform your divorce into a criminal proceeding you might as well just press criminal charges for harassment.

The Crime Of Harassment In Illinois

In Illinois, it’s illegal to harass someone whether you’re married to them or not.

“Harass” or “harassing” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, that would cause a reasonable person emotional distress and does cause emotional distress to another.” 720 ILCS 5/26.5-0.1

Most harassment is via a phone or computer.

“A person commits harassment by telephone when he or she uses telephone communication for any of the following purposes:Making any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent with an intent to offend; or

Making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number; or

Making or causing the telephone of another repeatedly to ring, with intent to harass any person at the called number; or

Making repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or

Making a telephone call or knowingly inducing a person to make a telephone call for the purpose of harassing another person who is under 13 years of age, regardless of whether the person under 13 years of age consents to the harassment, if the defendant is at least 16 years of age at the time of the commission of the offense; or

Knowingly permitting any telephone under one’s control to be used for any of the purposes mentioned herein.” 720 ILCS 5/26.5-2

Phones are computers nowadays so any phone call, text or other message can also qualify as electronic harassment.

“(a) A person commits harassment through electronic communications when he or she uses electronic communication for any of the following purposes:

(1) Making any comment, request, suggestion or proposal which is obscene with an intent to offend;

(2) Interrupting, with the intent to harass, the telephone service or the electronic communication service of any person;

(3) Transmitting to any person, with the intent to harass and regardless of whether the communication is read in its entirety or at all, any file, document, or other communication which prevents that person from using his or her telephone service or electronic communications device;

(4) Transmitting an electronic communication or knowingly inducing a person to transmit an electronic communication for the purpose of harassing another person who is under 13 years of age, regardless of whether the person under 13 years of age consents to the harassment, if the defendant is at least 16 years of age at the time of the commission of the offense;

(5) Threatening injury to the person or to the property of the person to whom an electronic communication is directed or to any of his or her family or household members;or

(6) Knowingly permitting any electronic communications device to be used for any of the purposes mentioned in this subsection (a).” 720 ILCS 5/26.5-3

Both harassment via telephone and harassment via electronic means are Class B misdemeanors in Illinois. Class B Misdemeanors may involve maximum jail time of up to 180 days and fines up to $1500.

Haraassment in person is better described as “stalking.”

“A person commits stalking when he or she knowingly engages 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:

(1) fear for his or her safety or the safety of a third person; or

(2) suffer other emotional distress.” 720 ILCS 5/12-7.3(a)

“Stalking is a Class 4 felony; a second or subsequent conviction is a Class 3 felony.” 720 ILCS 5/12-7.3(b)

In Illinois, class 4 felonies can require 1 to 3 years imprisonment.

It is impermissible to threaten criminal charges in exchange for some advantage in your divorce.

“It is professional misconduct for a lawyer to…present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.” Rule 8.4 – Misconduct, Ill. Sup. Ct. R. 8.4(g)

Orders Of Protection And Harassment In Illinois

Somewhere between a temporary order which expires and the prosecution of a felony which can result in prison is the right to ask for an order of protection.

There are two ways to get an order of protection. You can petition the court in criminal court by alleging domestic violence or you can petition the court in your domestic relations matter.

In order to get an order of protection based on domestic violence “[a] petition for a domestic violence order of protection may be filed…by a named victim who has been abused by a family or household member” 725 ILCS 5/112A-4.5

“”Abuse” means…harassment” 725 ILCS 5/112A-3(b)(1)

““Harassment” means knowing conduct which is not necessary to accomplish a purpose which is reasonable under the circumstances;  would cause a reasonable person emotional distress;  and does cause emotional distress to the petitioner.  Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:

(i) creating a disturbance at petitioner’s place of employment or school;

(ii) repeatedly telephoning petitioner’s place of employment, home or residence;

(iii) repeatedly following petitioner about in a public place or places;

(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner’s windows;

(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing from an incident or pattern of domestic violence;  or

(vi) threatening physical force, confinement or restraint on one or more occasions.” 725 ILCS 5/112A-3(b)(4)

“[T]he court shall grant the petition and enter a protective order if the court finds prima facie evidence that a crime involving domestic violence, a sexual offense, or a crime involving stalking has been committed.” 725 ILCS 5/112A-11.5

Within the domestic relations court, “[a] petition for an order of protection may be filed only:

by a person who has been abused by a family or household member or by any person on behalf of a minor child” 750 ILCS 60/201(b)(i)

Much like in a domestic violence case, “Abuse” means…harassment,” 750 ILCS 60/103(1) when getting an order of protection.

The definition of harassment necessary for an order of protection is the same as what the Domestic Violence Act requires.

The issuance of an order of protection includes this language…and promise: “Any knowing violation of an order of protection forbidding physical abuse, neglect, exploitation, harassment, intimidation, interference with personal liberty, willful deprivation, or entering or remaining present at specified places when the protected person is present, or granting exclusive possession of the residence or household, or granting a stay away order is a Class A misdemeanor.” 750 ILCS 60/221(c)

This possibility of a misdemeanor for violating an order of protection means the holder of the order of protection can call the police on the violator and the police will arrest him or her immediately. This is significantly more powerful than merely having the right to tell on the violator in divorce court weeks later.

Legal Harassment In An Illinois Divorce

Often, the actions of a spouse/ex-spouse and their attorney can feel like harassment even though they are done under the seal of a court of law. Sometimes, those actions are harassment and that is not permitted under the Illinois Supreme Court Rules.

“Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record… The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief… it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation….If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. S. Ct. R. 137(a)

If the other party is filing harassing pleadings, motions or anything that gets a clerk’s stamp, then you may file a motion for sanctions within the divorce case and within 30 days of the divorce being finalized.

“All proceedings under this rule shall be brought within the civil action in which the pleading, motion or other document referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate civil suit, but shall be considered a claim within the same civil action. Motions brought pursuant to this rule must be filed within 30 days of the entry of final judgment, or if a timely post-judgment motion is filed, within 30 days of the ruling on the post-judgment motion.” Ill. S. Ct. R. 137(b)

If you’re being harassed by your ex during or after an Illinois divorce, you need to establish clear boundaries and consequences for crossing those boundaries. Contact my Chicago, Illinois family law firm to learn more about your options.