Posted on October 8, 2021

What Is Mutual Stay Away Order In An Illinois Divorce?

Divorce can lead to (or result from) a lot of horrible events. The worst event in a divorce is the possibility of violence from one or both members of the marriage.

After abuse or harassment during or after an Illinois divorce, one party may file a Petition For An Order Of Protection against another. If granted, there will be criminal penalties for a spouse or ex-spouse who comes into contact with the protected party. If you didn’t get along with your spouse before, you’re really going to have issues with your spouse after you or they have been put in jail.

In lieu of an order of protection, Illinois courts and seasoned divorce attorneys often recommend that the parties enter into a mutual stay away order. A mutual stay away order provides a degree of protection of both parties from each other while making any violation of such order directly reportable to the divorce judge.

What Is An Order Of Protection In An Illinois Divorce?

Almost no one agrees to a mutual stay away order unless they’ve been threatened with a filed or soon-to-be-filed petition for 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…shall issue” 750 ILCS 60/214

An order of protection doesn’t mean that any abuse or harassment is no longer permitted. Abuse and harassment were never allowed!

Rather, an order of protection can “[o]rder respondent to stay away from petitioner or any other person protected by the order of protection, or prohibit respondent from entering or remaining present at petitioner’s school, place of employment, or other specified places at times when petitioner is present” 750 ILCS 60/214(b)(3)

So, upon being subject to an order of protection, the respondent can never be present at the protected party’s home, work, school…or even a chance encounter at the grocery store.

The mere presence of the respondent can be cause for arrest after the issuance of an Illinois order of protection.  

“A person commits violation of an order of protection if:

(1) He or she knowingly commits an act which was prohibited by a court…” 720 ILCS 5/12-3.4(a)

“Violation of an order of protection is a Class A misdemeanor.” 720 ILCS 5/12-3.4(d)

A class A misdemeanor can carry a possible prison sentence“The sentence of imprisonment shall be a determinate sentence of less than one year.” 730 ILCS 5/5-4.5-55

More likely, the penalty will be fines and probation if there is not a subsequent incidence of harassment or violence.

Still, any violation of an order of protection will lead to the arrest of the perpetrator.

Arresting an spouse or ex-spouse may be necessary but it is also dramatic…especially if they are a parent of your children. This is why mutual stay away orders are encouraged. Mutual stay away orders provide the same level of protection without the possibility of arrest.

The criminal charge of violation of an order of protection will be heard in front of a criminal judge who will know nothing of the background of the case. Additionally, the details of the violation will not automatically be forwarded to the divorce judge conducting the underlying family law case (this may or may not be true depending on the county of the case).

Furthermore, in many volatile relationships where an order of protection is necessary an Illinois court may believe that “it takes two to tango” and desire to restrain both parties from contacting each other.

However, in Illinois “Mutual orders of protection are prohibited.” 750 ILCS 60/215

So, mutual stay away orders are the only way to keep two parties apart from each other.  

Mutual Stay Away Orders In Illinois

You won’t find a statute authorizing mutual stay away orders in Illinois. A mutual stay away order is the result of an agreement by both parties to stay away from each other on whatever terms they can both agree to.

Mutual stay away orders allow for the parties to keep working together, enable pick-ups and drop offs of children and won’t turn a chance encounter on the street into a crime scene.

Broad language is usually encouraged in mutual stay away order (also known as a mutual restraining order).

For example: “With respect to the Petitioner, Respondent is hereby restrained from committing any of the following:

  1. harassment
  2. physical contact
  3. interference with liberty
  4. stalking
  5. physical abuse
  6. verbal abuse
  7. threats of any nature “

Broad language in a mutual stay away order is preferable because a policeman is not necessary to determine if a violation occurred exactly under the order. Instead, the parties simply part ways and address the alleged violation with their divorce judge at a later date.

Mutual stay away orders can also provide any protection that an order of protection could grant (if the parties agree). These protections include allocating exclusive possession of a home or prohibit possession of a firearm.

What Happens If Someone Violates A Mutual Stay Away Order

A mutual stay away order is still an order. It must be obeyed.

A motion relating to a judge’s order will go back in front of that exact same judge. That judge will be familiar with the background of the case. The notice of the violation of a mututal stay away order will likely impact the rest of the divorce case.

A violation of a mutual stay away order will result in the non-violating party filing a Motion To Enforce or a Petition For Rule To Show Cause.

A petition to enforce does nothing more than tell the other party to “knock it off.” The other party already didn’t follow the first order so why would they follow a subsequent one.

A subsequent petition to enforce needs teeth. That’s why subsequent petitions for enforcement are almost always in the form of a Petition For Rule To Show Cause.

A Petition For Rule To Show Cause will ask that the violator be held in indirect civil contempt of court.

Indirect contempt means the judge didn’t see it with their own eyes so the contempt must be proven by evidence.

“Indirect contempt occurs outside the presence of the court and must therefore be proved by extrinsic evidenceWhere an element of the offense is not observed by the judge and must be proved by testimony from third parties, then the accused contemnor must be given notice, a fair hearing and an opportunity to be heard”Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)

“Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 876 N.E.2d 650, 657 (2007)

A judge can get creative with sanctions or penalties for civil contempt of court. Violation of a mutual stay away order will likely result in a new, more restrictive order against the violator.

The mutual stay away order violator will absolutely be required to pay for the other party’s attorney’s fees for bringing the violation to the attention of the Illinois divorce court.

“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, an Illinois divorce judge could go so far as to consider the violation of a mutual stay away order to be an affront to the “dignity and authority of the court” People. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 173 N.E.2d 417 (Ill. 1961)

Such a finding would allow the Illinois divorce judge to invoke indirect criminal contempt of court…which allows for imprisonment of the contemnor.

“Imprisonment for criminal contempt is inflicted as a punishment for that which has been done” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)

It will take extreme behavior for a judge to enforce criminal contempt due to the violation of a mutual stay away order. Criminal contempt requires the appointment of a lawyer to defend against the criminal charges.

“The respondent in a…criminal contempt proceeding is entitled to information on the nature of the charge, an opportunity to answer, the privilege against self-incrimination, the presumption of innocence, and the requirement of proof of guilt beyond a reasonable doubt.” In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404 (Ill. App. Ct. 1990)

What is more likely is that extreme behavior in the face of a standing mutual stay away order will likely result in…a renewed petition for an order of protection that will be swiftly granted.

Orders of protection are necessary, sadly. But, when orders of protections are not absolutely necessary, it is far preferable for all parties involved to simply avoid each other under the authority of a mutual stay away order.

Civil Restraining Orders In Lieu Of A Mutual Stay Away Order

If the other party will not agree to a mutual stay away order, you may ask for a civil restraining order. A civil restraining order is, essentially, a non-mutual stay away order.

“In contrast [to a petition for an order of protection], a civil restraining order involves fewer and less effective remedies. Typically, a civil restraining order forbids the perpetrator from engaging in ordinary communication and association with specific persons. Section 501(a)(2) of the Illinois Marriage and Dissolution of Marriage Act requires a party seeking a temporary restraining order to present an affidavit showing a factual basis for relief. 750 ILCS 5/501(a)(2) (West 2012). The party must demonstrate that he or she: (1) possesses a certain and clearly ascertainable right that needs protection; (2) will suffer irreparable harm without the protection of the injunction; (3) has no adequate remedy at law; and (4) is likely to succeed on the merits of the case. In re Marriage of Centioli, 335 Ill.App.3d 650, 654, 269 Ill.Dec. 814, 781 N.E.2d 611 (2002). And unlike an order of protection, a civil restraining order does not create a criminal record for the perpetrator or prohibit the perpetrator from lawfully possessing a firearm for purpose of employment.

A civil restraining order is simply no substitute for an order of protection.Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016

If there has been abuse an order of protection is not only preferable, an order of protection is mandatory

When the petitioner seeks a plenary order of protection and, after an evidentiary hearing, the trial court finds abuse, may the court decide instead to issue a civil restraining order, which is a less severe remedy? No. A civil restraining order carries neither the same rights nor gravitas conferred by an order of protection. Under the Illinois Domestic Violence Act of 1986 (Act), once the trial court finds respondent has committed an abuse against petitioner, it “shall issue” an order of protection. 750 ILCS 60/103(12), 214(a)” Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016

To learn more about mutual stay away orders, contact my Chicago, Illinois family law firm to learn more about all of your options during your Illinois divorce.

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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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