Is An Illinois Order of Protection Violated If The Protected Party Initiates Contact?

Orders of protection are powerful tools and once an order of protection is in place, its violation has serious penalties. Orders of protection can be violated even if the protected party consents to the so-called violation. Orders of protection keep people apart who used to live together. Orders of protection are ony available to “any person abused by a family or household member” 750 ILCS 60/201(a)(i) Orders of protection can also be issued for people who used to date. “Family or household member” include “persons who have or have had a dating or engagement relationship.” 750 ILCS 60/103(6)  People that used to share some kind of familial or dating relationship often will reach out their former abusers either out of nostalgic desire for reconciliation or as a trap to force the defendant to violate the order of protection. Is it a valid defense to say that an order of protection was not violated because the protected party was, in reality, the person who contacted the defendant? Can a defendant to an order of protection argue that the protected party was not threatened or abused by the defendant but, rather, invited the defendant to contact them…which may, technically, violate the order of protection but not the spirit of the order of protection: to protect? The violation of an order of protection depends on what remedies were granted in the order of protection. When an order of protection is issued different remedies are established that prohibit future contact between the parties. Virtually all orders of protection include a “[p]rohibition of abuse, neglect, or exploitation. Prohibit respondent’s harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation…stalking of the petitioner” 750 ILCS 60/214(a)(1) Answering a petitioner’s phone call or coming over to a petitioner’s house after being invited is hardly “abuse, neglect, exploitation…harassment, etc.” However, most orders of protection additionally prohibit ANY contact. The Illinois Domestic Violence Act allows a court to “[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, or both, if reasonable, given the balance of hardships. Hardships need not be balanced for the court to enter a stay away order or prohibit entry if respondent has no right to enter the premises.” […]

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Spouse Sabotaging A Business In An Illinois Divorce

Business owners have the worst divorces. A business owner’s income will be challenged because, after, the business owner pays themselves. The value of the business must be determined by outside experts without an actual sale (business owners always want to keep their business). Furthermore, a business owner’s spouse knows the strengths and weaknesses of the business and can actively sabotage their spouse’s business during the tumult of a divorce. When a spouse does actions or inactions that actively harm a business, the business owning spouse can file additional claims beyond the Petition For Dissolution of Marriage, effectively suing the spouse for the damages that spouse is causing to the business. This strategy can be very effective in a family law court where additional claims are almost never pled. Tortious Interference With A Prospective Economic Advantage The tort of “tortious interference with a prospective economic advantage” is a tool a business owner can use to recover damages from another person, even a spouse, who ruins some kind of economic opportunity. “It is generally recognized by the Illinois courts, however, that to prevail on a claim for tortious interference with a prospective economic advantage, a plaintiff must prove: (1) his reasonable expectation of entering into a valid business relationship; (2) the defendant’s knowledge of the plaintiff’s expectancy; (3) purposeful interference by the defendant that prevents the plaintiff’s legitimate expectancy from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference.” Fellhauer v. City of Geneva, 142 Ill. 2d 495, 511 (Ill. 1991) This tort is far easier to prove against a business owner’s spouse because any negative action by that spouse cannot be inferred to have some reasonable purpose (a defense a competitor could enjoy). “In Illinois, a claim for tortious interference with a prospective economic expectancy must [have]…intentional and malicious interference with the expectancy without just cause.” Disher v. Fulgoni, 161 Ill. App. 3d 1, 24 (Ill. App. Ct. 1987) An “allegation [must have] ‘intentional and malicious interference’ necessary to establish a prima facie case of tortious interference with prospective economic advantage.” Small v. Sussman, 306 Ill. App. 3d 639, 648-49 (Ill. App. Ct. 1999) “[I]f [a defendant’s] conduct is directed solely to the satisfaction of his spite or ill will and not at all to the advancement of his competitive interests over the person harmed, his interference is held to be improper.” TOTAL STAFFING SOLUTIONS v. Staffing, […]

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Financial Abuse In An Illinois Divorce

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. […]

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How Is Maintenance Calculated In Illinois?

In Illinois, maintenance (formerly known as alimony) is always one of three different numbers: Zero. Because maintenance is not warranted in this divorce case. 33% of the payor’s net income minus 25% of the payee’s net income (with payor’s income and maintenance not to exceed 40% of the total of the two incomes) An amount appropriate based on the circumstances of the two divorcing parties. To determine which of these three formulas will be applied in your Illinois divorce case and what number will, eventually, be arrived at as your maintenance payment, the below analysis must occur. Will There Even Be Maintenance In Your Illinois Divorce? For every divorce case in Illinois, the court must first find that ANY maintenance award is appropriate. “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…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. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including: (1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all […]

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Enforcing A Judgment In An Illinois Divorce

After an Illinois divorce is settled or a trial order is issued, the divorce is not over. Both parties must still comply with the terms of the Judgment for Dissolution of Marriage and the incorporated Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities. Illinois law provides multiple methods for enforcing those terms. All of these contracted agreements become incorporated into the judgment once the Judgment for Dissolution of Marriage is entered. At that time, the agreements are enforceable as judgments. “Under section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Act), settlement agreements are enforceable as terms of a judgment and by incorporation into a judgment they become part of the trial court’s order. By such incorporation, the agreement’s subservient nature as a contract gives way to the dominant character of the adjudication. Thus, the terms of the marital settlement agreement are enforceable as terms of the judgment.” In re Marriage of Sloane, 255 Ill. App. 3d 653, 656 (Ill. App. Ct. 1993) “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/504(e) Orders get enforced in the same court the order was issued. “Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a) If someone has moved, the order will be enforced in the new, appropriate county or state. “If neither party continues to reside in the county wherein such judgment was entered or last modified, the court on the motion of either party or on its own motion may transfer a post-judgment proceeding…to another county or judicial circuit, as appropriate, where either party resides.”750 ILCS 5/511(a) But, filing a motion for enforcement is kind of silly because they are already not following the order. What are you going to do? Get another order which they will, in turn, also not follow? You need something extra. You need the power of contempt. Enforcing a Judgment Via Contempt To violate a court order is to insult the decency and power of the court which issued that order. Therefore, that court may hold the violator in contempt for said violation. Contempt can either be criminal or civil. Violation of a judgment for dissolution of marriage and its incorporated orders is invariably an issue of civil contempt. […]

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Income Producing Assets And Maintenance In An Illinois Divorce

Warren Buffet once said, “If you don’t find a way to make money while you sleep, you will work until you die.” Many people have saved enough money, that subsequently makes enough money to maintain themselves…and then they get divorced. The money divided is often enough to live off as well (or at least pay for half of the divorced person’s expenses). Do income producing assets mean that no one has to pay maintenance (formerly known as alimony)? Or do income producing assets mean that there is now even more alimony to be paid from that income after an Illinois divorce? Is There So Much Assets Awarded That Neither Spouse Needs Maintenance? The assets awarded in an Illinois divorce absolutely affect whether an Illinois divorce court will award maintenance. Before even considering the amount of maintenance, an Illinois divorce court must consider whether the assets awarded to either spouse make a maintenance award appropriate. “In a proceeding for dissolution of marriage…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… The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage.” 750 ILCS 5/504(a) If the assets awarded are so incredibly lucrative that the spouse’s needs will certainly be met, no maintenance need be awarded. If the assets awarded do not produce such clear and tremendous independent income, the court will award maintenance, either pursuant to guidelines (a mathematical formula) or deviating from guidelines (based on fairness). How Is Maintenance Calculated When Income From Assets Are Not Considered? “[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1) A “[m]aintenance award in accordance with guidelines.…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A) This maintenance guideline amount has a cap based on the maintenance receiver’s income relative to the maintenance payor’s income. “The amount calculated as […]

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Interest and Dividend Income In An Illinois Divorce

“If you don’t find a way to make money while you sleep, you will work until you die.” – Warren Buffett.  Lots of people have followed Warren Buffet’s advice by saving and investing so their money can earn them an independent income one day. These investments generate interest, dividends and other kids of income. However, even the wisest investor will have a personal life and, sometimes, that means divorce.  How is interest, dividend and other income treated in an Illinois divorce? Asset Division In An Illinois Divorce Assets that generate income are divisible in a divorce if the assets are marital property. After the designation of an asset being “marital property” the Illinois divorce court “shall divide the marital property” 750 ILCS 5/503(d) Non-marital property is property that was acquired before the marriage or received as a gift or inheritance. Non-marital property stays with the spouse whose name the non-marital property is in. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Dividing the assets is not the end of the story, however. If those assets generate some kind of income via rents, interest, dividends, etc., then that income must be factored into any maintenance or child support calculations. Income From Assets In An Illinois Divorce In determining maintenance (formerly known as alimony) the courts will consider “the income and property of each party” 750 ILCS 5/501(a)(1). Child support amount is similarly arrived at based on income in that child support in that the Illinois statute states its goal is “to allocate the amount of child support to be paid by each parent based upon a parent’s net income” But what is “income” for the purposes of a divorce? Income is “[t]he money or other form of payment that one receives, usu[ally] periodically, from employment, business, investments, royalties, gifts and the like.” Black’s Law Dictionary 778 (8th ed. 2004) The Illinois child support statute agrees that income can come from a broad range of sources. “”[G]ross income” means the total of all income from all sources” 750 ILCS 5/505(a)(2)(A) The Illinois maintenance statute reads similarly and directs us back to the child support statute should there be any questions. “”gross income” means all income from all sources, within the scope of that phrase in [the child support section] of this Act” For the purposes of both child support and maintenance gross income is a factor […]

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Freezing Assets During an Illinois Divorce

When a divorce begins, there is a fundamental lack of trust between the two spouses. This lack of trust is especially strong when it comes to finances. There will always be suspicion that one spouse will try to hide or remove assets from the marriage. Because of this, parties will try to ask the court to freeze all of the marriage’s assets during the divorce until those assets can be appropriately allocated in the divorce process. “In a marriage dissolution proceeding, it is proper to prevent one spouse from secreting or disposing of marital assets” Erlich v. Lopin-Erlich, 553 NE 2d 21 – Ill: Appellate Court, 1st Dist. 1990 How do you freeze assets in an Illinois divorce? The Automatic Stay In many states, there is an “automatic stay” in the statutes that prevents parties to a divorce from doing anything to diminish or conceal any assets. In addition or in the alternative, other states also will allow judges to issue standing orders that are automatically issued at the beginning of a divorce case. Those standing orders can personally order the parties to a divorce to essentially freeze their assets until further order of court. There used to be a provision in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1), providing for the automatic restraint against transferring, encumbering or disposing of any property without bond the moment a divorce was filed until further order of court. This provision of the act automatically freezing assets in an Illinois divorce has since been removed after the provision was found to be unconstitutional by the Illinois Supreme Court. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993) The court found that the provision was overly broad because there are almost always non-marital assets that would also be frozen under this Illinois statute. Furthermore, any legal restriction by the state or a court must require “due process” under the U.S. constitution and the Illinois constitution. Due process is the fair application of the law. The court held that automatically freezing someone’s assets without notice, hearing or even a signed affidavit by someone familiar with the facts is a direct violation of due process. So, there is no automatic freezing of assets in an Illinois divorce.  Temporary Restraining Order or Preliminary Injunction Assets can eventually be frozen in an Illinois divorce, just not automatically.  A motion must be filed in order to freeze […]

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Intoxication and Orders Of Protection In Illinois

Drugs and alcohol make people do crazy things. When someone is intoxicated their actions can threaten or hurt others…even the people they claim to love. Behavior when a person is intoxicated can be abusive. Abusive behavior requires the court to issue 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 The definition of abuse is very broad. “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Most behavior of an intoxicated person could be accurately described as harassment. “’Harassment’ means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner.” 750 ILCS 60/103(7) Intoxicated people are always doing things that are not “reasonable” and “would cause…emotional distress.” A respondent’s intoxication alone may cause sufficient distress to warrant a finding of harassment. “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) However, there must be some evidence more specific than habitual intoxication. “The bases for the request for an order of protection were that [Petitioner] believed [Respondent] had an alcohol problem; that he muttered swear words under his breath on one occasion; that he awakened the children early in the morning to go on a trip; and that she was afraid he might have an accident. There were no credible allegations of abuse, harassment, or interference with personal liberty. There was, then, insufficient evidence to support the entry of a plenary order of protection.” In re Marriage of Healy, 635 NE 2d 666 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994 Intoxicated people usually provide an incident that is sufficient to warrant an order of protection. Calling the police to investigate the intoxicated person will often create a solid basis for an order of protection as police are required to investigate any allegations of abuse. “Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a […]

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