The internet is full of chatter about divorce. The latest buzzword in the internet divorce community is the “silver bullet divorce”
A silver bullet divorce is a divorce that starts with an emergency order of protection.
Emergency petitions for order of protection are almost always heard “ex parte” (without the accused even being present.) The fact that the accused is usually not even available means the emergency order of protection is almost always granted.
An entered order of protection, typically, excludes the accused party from the marital home and, often, denies the accused party access to their children.
The accused party then spends months waiting for the order of protection to be resolved. When the order of protection is finally resolved, the other party is settled into living independently and the children are estranged from the parent. The actual divorce is now an uphill battle where the excluded parent is expected to pay for a home they are not allowed and to earn back their parenting time as if they had never been in their children’s lives.
This is terrible! If you are a victim of this silver bullet divorce strategy, do NOT spend your days lamenting the unfairness of the divorce/custody system with a bunch of anonymous internet people. Fight back now!
There are several immediate steps that can be taken to diffuse a silver bullet divorce strategy.
Step One: File for Divorce
A savvy silver bullet divorce strategist will not even file for divorce. They will only file a petition for an order of protection. This will leave the court with nothing but remedies offered by the Illinois Domestic Relations Act. The remedies under the Illinois Domestic Violence Act do not grant parenting time but, rather, deny parenting time.
A court which is only a hearing a petition for an order of protection must give the allegedly non-abusive parent full custody.
“If a court finds, after a hearing, that respondent has committed abuse (as defined in Section 103) of a minor child, there shall be a rebuttable presumption that awarding temporary significant decision-making responsibility to respondent would not be in the child’s best interest.” 750 ILCS 60/214(b)
“Abuse” is almost anything in a domestic violence court.
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)
“Harassment” is the broadest kind of abuse.
“Harassment results from intentional acts which cause someone to be worried, anxious, or uncomfortable. Harassment does not necessarily require an overt act of violence.…[H]arassment occurs when a protagonist knowingly causes his victim to suffer undue distress.” People v. Whitfield, 147 Ill. App. 3d 675, 680 (Ill. App. Ct. 1986)
After abuse is found, an Illinois court only considering an order of protection can allow for parenting time for the allegedly abusive parent but only under extremely narrow restrictions.
A court can “[d]etermine the parenting time, if any, of respondent in any case in which the court awards physical care or allocates temporary significant decision-making responsibility of a minor child to petitioner.” 750 ILCS 750 ILCS 60/214(b)(7)
If any of the alleged abuse affected a child, the court must deny that parent parenting time.
“The court shall restrict or deny respondent’s parenting time with a minor child if the court finds that respondent has done or is likely to do any of the following: (i) abuse or endanger the minor child during parenting time; (ii) use the parenting time as an opportunity to abuse or harass petitioner or petitioner’s family or household members; (iii) improperly conceal or detain the minor child; or (iv) otherwise act in a manner that is not in the best interests of the minor child. The court shall not be limited by the standards set forth in Section 603.10 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/214(b)(7) (emphasis mine)
The Marriage and Dissolution of Marriage Act, in contrast to the Illinois Domestic violence act has special protections that ensure parents can see their children. Under 750 ILCS 5/603.10, a parent’s access to their children cannot be unreasonably restricted without a finding that the “parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development” 750 ICLS 5/603.10(a)
“A visitation restriction, thus, must meet the serious-endangerment standard, which is more onerous than the best-interests standard…Examples of restrictions include a termination of visitation, a prohibition on overnight visitation, or a requirement of supervised visitation.” In re Parentage of K.E.B., 2014 IL App (2d) 131332
Likewise, the party filing a petition for order of protection may be granted exclusive possession of the marital home without any of the protections afforded by the Illinois Marriage And Dissolution of Marriage Act.
An Illinois domestic violence court can “[p]rohibit respondent from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by respondent, if petitioner has a right to occupancy thereof. The grant of exclusive possession of the residence, household, or premises shall not affect title to real property, nor shall the court be limited by the standard set forth in subsection (c-2) of Section 501 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/214(b)(2)
In a divorce, a party can only be kicked out of their home after a full hearing that considers everything NOT just abuse. “Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-2)
A divorce court does not want to see one party homeless. When evicting someone on a temporary basis, “the court shall balance hardships to the parties.” 750 ILCS 5/501(c-2)
A domestic violence court will balance the hardships to the parties as well…with a presumption against the alleged abuser.
“The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence, showing that the hardships to respondent substantially outweigh the hardships to petitioner and any minor child or dependent adult in petitioner’s care.” 750 ILCS 60/214(b)(2)(B)
Therefore, to invoke the protections under the Illinois Marriage Act, the respondent to a petition for order of protection must file a petition for dissolution of marriage or a parentage action.
In Cook County this triggers an automatic transfer of the order of protection to the divorce court.
“When a petition for an order of protection is filed…[and] there is a domestic relations matter pending….the order of protection shall be consolidated with the pending domestic relations matter after the hearing on an emergency order of protection.” Cook County Court Rules 13.3(i), (ii)
Step Two: Vacate Or Modify The Order Of Protection
Most respondents to an emergency petition for order of protection simply wait for the plenary hearing in the hopes the same court that removed them from their house and children will get it right the second time…whenever that happens.
If you have been kicked out of your house after an emergency order of protection was granted, you have the right to a rehearing within 14 days of filing amotion to re-open or vacate that emergency order of protection.
“In the event that the emergency or interim order granted petitioner exclusive possession and the petition of respondent seeks to re-open or vacate that grant, the court shall set a date for hearing within 14 days on all issues relating to exclusive possession. Under no circumstances shall a court continue a hearing concerning exclusive possession beyond the 14th day, except by agreement of the parties. Other issues raised by the pleadings may be consolidated for the hearing if neither party nor the court objects.” 750 ILCS 60/224(e)
Whether a divorce is filed or not (but please file for divorce), the order of protection can be modified using the Illinois Marriage And Dissolution of Marriage’s more parent-friendly statutes.
“Upon motion by petitioner or respondent, the court may modify any prior order of protection’s remedy for custody, visitation or payment of support in accordance with the relevant provisions of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/224(b)
This allows immediate parenting time in the best interests of the children not based on whether someone “abused” someone else.
The Illinois Domestic Violence Act requires the court to make certain findings in order to issue an order of protection. The best way to attack an order of protection is to attack those findings.
“[T]he court shall make its findings in an official record or in writing, and shall at a minimum set forth the following:
(i) That the court has considered the applicable relevant factors described in paragraph (1) and paragraph (2) of this subsection.” 750 ILCS 60/214(c)(3)(i)
Even if “abuse” occurred did the court consider everything it was required to consider. Specifically did the court consider “the nature, frequency, severity, pattern and consequences of the respondent’s past abuse, neglect or exploitation of the petitioner or any family or household member, including the concealment of his or her location in order to evade service of process or notice, and the likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member of petitioner’s or respondent’s family or household; and the danger that any minor child will be abused or neglected or improperly relocated from the jurisdiction, improperly concealed within the State or improperly separated from the child’s primary caretaker.” 750 ILCS 60/214(c)(1)(i),(ii)
The respondent may want to show that there was zero pattern of past abuse and there is zero consequence resulting from this instance of so-called abuse. Furthermore, the order of protection, itself, has “improperly separated” the child “from the child’s primary caretaker.”
If the respondent has been kicked out of their home, did the court properly compare relative hardships? “In comparing relative hardships resulting to the parties from loss of possession of the family home, the court shall consider relevant factors, including but not limited to the following:(i) availability, accessibility, cost, safety, adequacy, location and other characteristics of alternate housing for each party and any minor child or dependent adult in the party’s care;(ii) the effect on the party’s employment; and(iii) the effect on the relationship of the party, and any minor child or dependent adult in the party’s care, to family, school, church and community.” 750 ILCS 60/214(c)(2)
A domestic violence court must further make findings of “Whether the conduct or actions of respondent, unless prohibited, will likely cause irreparable harm or continued abuse.” 750 ILCS 60/214(c)(3)(ii)
If there is not irreparable harm or continued abuse, there is no need for an order of protection.
An Illinois domestic violence court must state “Whether it is necessary to grant the requested relief in order to protect the petitioner or other alleged abused persons.” 750 ILCS 60/214(c)(3)(iii)
Why is this order of protection necessary? If the parties have access to the alternative forms relief from the Illinois Marriage and Dissolution of Marriage Act, the order of protection is no de facto no longer necessary.
These findings must be in the order of protection. A “trial court should abide by its statutory obligation to make specific findings prior to entering an order of protection under the Act.” In re Marriage of Henry, 696 NE 2d 1181 – Ill: Appellate Court, 2nd Dist. 1998
Orders of protection are usually just form where if “[t]he trial court checked the boxes next to each of these findings, [the court would] thus satisfying sections 214(c)(3)(ii) and (iii).” Landmann v. Landmann, 133 NE 3d 117 – Ill: Appellate Court, 5th Dist. 2019
Finally, the respondent can attack the order of protection as being part of the silver bullet divorce strategy and is, therefore, an impermissible custody-wolf disguised in order of protection sheep’s clothing.
“Obtaining an order of protection is not the proper procedure for resolving child custody or visitation issues. Those issues should be resolved under the Illinois Marriage and Dissolution of Marriage Act” Radke v. Radke, 349 Ill. App. 3d 264, 269 (Ill. App. Ct. 2004)
An order of protection will be reversed if the “primary objective of the party seeking an order of protection [was] really to interfere with or change a child custody or visitation order.” Sutherlin v. Sutherlin, 363 Ill. App. 3d 691, 695 (2005)
An order of protection will vacated if after “[a] careful review of the entire record…[and finding a] dearth of evidence of abuse [the court concluded that] petitioner’s primary purpose in seeking an order of protection was not to prevent abuse but was to obtain visitation with and custody of the child” Wilson v. Jackson, 312 Ill. App. 3d 1156 (2000)
Bad intentions in filing a petition for order of protection will result in vacatur of the subsequent order of protection. “[O]ur review of all the proceedings discloses that a change of custody was the purpose of the petition [and that the petition for a protection order under the Domestic Violence Act was merely] a subterfuge to permit [the child’s father] to circumvent the requirements [under the Illinois Marriage Act]” In re Marriage of Gordon, 233 Ill. App. 3d at 626-27
The overly broad harassment standard of abuse under the Illinois Domestic Violence Act is washed away by a finding that a party has “misused the Domestic Violence Act for the purpose of attempting to alter [the other party’s] visitation with [the child]. For that reason…we vacate the order of protection” Radke v. Radke, 349 Ill. App. 3d 264, 269 (Ill. App. Ct. 2004)
Once the order of protection is vacated, you can pursue your divorce on equal grounds based on divorce principles NOT emergency abuse prevention principles.
If you have a petition for order of protection filed against you, you must take affirmative steps or you will lose your home and your children. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer today.
