The “Four Corners” Defense To A Petition For Order Of Protection In Illinois

Defending against an Order of Protection In Illinois is not easy. Illinois law makes Orders of Protection relatively simple to secure. An Illinois court need only find that abuse occurred 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 (emphasis mine) The legal standard for determining whether abuse occurred is “the preponderance of the evidence” whether it was more than 50% likely that the abuse occurred. “The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a) “[T]he preponderance of evidence, otherwise referred to as the ‘more probably true than not true’ standard.” Holton v. Memorial Hosp., 679 NE 2d 1202 – Ill: Supreme Court 1997 Any instance of abuse that is more likely to have occurred than not will result in an order of protection being issued in an Illinois court. The respondent in an Petition for Order of Protection will, of course, tell their own version of events but the respondent will also do their best to keep the petitioner’s proposed evidence out of court. After all, if there’s no evidence, there can be no preponderance of evidence. The Petition for Order of Protection is a clunky, one-size-fits-all form. The form is mostly checklists. This is hardly the best way to describe a, presumably, horrifying incident of abuse. Specifically, Page 4, Paragraph G gives the Petitioner exactly 6 lines to describe an incident of abuse with a maximum of 4 instances (unless you want to attach your own additional description). The respondent to a Petition for Order of Protection may cleverly use the form’s limitations as a denial of due process (but it shouldn’t work, as I’ll show later). No one shall be “deprived of life, liberty, or property, without due process of law” U.S. Const. amend. V, § 1, cl. 1 “The essence of procedural due process is meaningful notice and a meaningful opportunity to be heard” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799 (Ill. App. Ct. 2002) How could those 4 sets of 6 lines on the form be “meaningful notice” or the full allegations of a Petition for an Order of Protection. A respondent will be quick to object to any testimony that describes anything not written 4 […]

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Due Diligence In An Illinois Divorce

The law is full of buzzwords that further qualify other legal concepts. One of the most common terms found throughout law in general and family law in particular is “due diligence.” Due diligence is “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation” Black’s Law Dictionary (11th ed. 2019) The requirement of due diligence is effectively the court system telling litigants to “keep it moving or you’ll lose your rights” which exists in addition to statutes of limitations and other deadlines. Failure to act with due diligence means justice is delayed to the point of denial: evidence goes missing, witnesses forget (or worse, die). So, while the divorce litigation process feels like a series of delays and continuances, the courts can say “Sorry, it’s been too long. Hurry up and get to it or I’ll cancel your case” Due Diligence And Service In An Illinois Divorce Starting a divorce case requires filing a petition for dissolution of marriage and then serving the summons on the opposing side. “If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be dismissed without prejudice.”  Ill. Sup. Ct. R. 103(b) Service requires due diligence because, as a society, people need to know if they are, in fact, being sued. Otherwise, they’ll just keep doing whatever bad act is being complained of (even if it’s being a bad spouse). “Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice of a pending action, shortens the time needed to investigate, prepare and litigate the issues raised, thereby allowing the court to proceed expeditiously to a just resolution of the matter before it. Where a plaintiff (1) fails to exercise due diligence….justice is truly and unnecessarily delayed.” In reality, due diligence for service is rarely an issue in an Illinois divorce. Illinois divorce courts generate automatic status dates for the court to inquire what is happening in each particular case. Failure to serve the summons should result in the court allowing for service via email, social media or text message. If service is […]

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Can I Get My Husband Or Wife Deported?

As a Chicago divorce attorney who speaks three languages, the issues of immigration and divorce intersect constantly. Understandably upset, clients believe they can solve all of their problems by having their immigrant spouse deported as well as divorced. The reality is that it is extremely difficult to get the Department of Homeland Security to act on their limited authority to deport an immigrant spouse without extreme circumstances.  The possibility of deportation depends on the spouse’s status. If the spouse has no status (they’re undocumented) or the immigration status they once had has expired, then there is no deportation trigger. You could call the Department of Homeland Security’s tip line at 866-DHS-2-ICE and report the person. But DHS is looking for information relating to crimes like fraud, human trafficking, and gang-related crimes. Simply being undocumented is not something their tip line is looking for. I have never heard them acting on a tip of a merely undocumented person. Scheduling an appointment with a USCIS field office to meet in person would probably be more productive. My advice to anyone in this situation is to let bygones be bygones. If the spouse has a conditional status – that is, the 2-year conditional status granted before the marriage will be reviewed for validity – this involves providing DHS with evidence of shared expenses, cohabitation, and, in this day and age, lots and lots of Facebook photos. If, during this 2-year period you believe that your marriage was a fraud, you can bring this to the attention of DHS. Immigration law INA 237(a)(1)(G) specifically provides that: “An alien shall be considered to be deportable as having procured a visa or other documentation by fraud (within the meaning of section 212(a)(6)(C)(i)) and to be in the United States in violation of this Act (within the meaning of subparagraph (B)) if – (i) the alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such entry… unless the alien establishes… that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or (ii) it appears… that the alien has failed or refused to fulfill the alien’s marital agreement which… was made for the purpose of procuring the alien’s admission as an immigrant.” The definition of “fraud” for these purposes […]

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Charts, Summaries and Calculations In An Illinois Divorce Trial

Too many family law attorneys treat trial like a school project—summarize the facts, cite the law, hand it to the judge like a term paper. But Illinois divorce trials don’t grade on neatness and organization. Illinois trials require evidence, foundation, and admissibility. Evidence must be admitted consistent with the Illinois rules of evidence. Every little item you want the court to take notice of must be properly admitted which requires laying foundation and establishing authentication while being free from evidentiary objections (or subject to an exception to an objection). In a divorce, if the marital estate includes assets and sources of income beyond the usual set of issues: house, 401k and W2s the process of admitting evidence can become overly tedious for everyone…especially the judge. Beyond creating a balance sheet of a multitude of accounts, assets and debts, divorce cases can involve complicated dissipation allegations, commingling and tracing of marital or non-marital contributions. The more detailed the case, the more likely it is that the divorce judge will allow a summary of the evidence in lieu of individual admission of each piece of original evidence. Getting Exhibits Into Evidence In An Illinois Divorce Trial Financials rarely come into evidence via testimony alone. For the court to adequately tabulate who owns or owes what, the court needs exhibits which are almost writings. ““Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” Ill. R. Evid. 1001(1) Ideally, the writing observed will be an original. “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Ill. R. Evid. 1002 Duplicates are perfectly okay so long as they are truly exact copies. “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Ill. R. Evid. 1003 The problem is when there are dozens to thousands of documents for the court to consider. This process of introducing each individual document becomes untenable. In situations with “voluminous documents” the courts can allow summaries in lieu of actual admission of the underlying […]

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Custody Of Children And Orders Of Protection In Illinois

I have told clients for years that the family law system is slow, but it is fair. There is one part of the system that is rapid by design…and has instant results to the benefit of one parent and the detriment of the other parent: orders of protection. Orders Of Protection Lead To Immediate Temporary Custody Orders In Illinois  Orders of protection happen fast. In fact, orders of protection are usually always initially filed as emergencies and heard the same day or the next day. “If the court finds that petitioner has been abused by a family or household member or that petitioner is a high-risk adult who has been abused, neglected, or exploited, as defined in this Act, an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214(a) “’ Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Once a finding of abuse is made an order of protection SHALL be granted. “[If an order of protection is granted] the remedies to be included in an order of protection shall be determined in accordance with this Section” 750 ILCS 60/214 The remedies listed in the Illinois Domestic Violence Act include immediate rulings regarding the parenting time and parental decision-making (formerly known as “custody”) of the children. “Physical care and possession of the minor child. In order to protect the minor child from abuse, neglect, or unwarranted separation from the person who has been the minor child’s primary caretaker, or to otherwise protect the well-being of the minor child, the court may do either or both of the following: (i) grant petitioner physical care or possession of the minor child, or both, or (ii) order respondent to return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis.” “Temporary allocation of parental responsibilities: significant decision-making. Award temporary decision-making responsibility to petitioner in accordance with this Section, the Illinois Marriage and Dissolution of Marriage Act, the Illinois Parentage Act of 2015, and this State’s Uniform Child-Custody Jurisdiction and Enforcement Act.” 750 ILCS 60/214(b)(6) An Illinois domestic violence court can provide a parenting schedule for the respondent and the child after an order of protection is entered.   “Parenting time. Determine the parenting time, if any, of respondent in any case in which the […]

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How To Get 50/50 Joint Custody in An Illinois Divorce or Parentage Action

In an Illinois divorce, you can lose a lot.  You can lose your assets and you can lose time with your kids.  In the end, you can make more money but you can’t get back time with your kids. For most parents, the most parenting time they can ever hope for is a 50/50 joint custody arrangement with the other parent.  So, how do you get a 50/50 joint custody order in Illinois divorce? 50/50 custody is not the default in Illinois but it can be achieved. “[C]ourts have traditionally viewed 50/50 joint parenting time with caution” and “[i]n cases where the evidence clearly showed that parents had too much animosity to be able to cooperate, 50/50 arrangements have been set aside.” In re Marriage of Virgin, 2021 IL App (3d) 190650  Understanding Custody In An Illinois Divorce. There is no custody in Illinois.  At least not since when the Illinois legislature changed the law to eliminate the word “custody.” The Illinois legislature did the right thing, the word “custody” is simply too charged with meaning in our society.  There is almost no greater taboo in America than for a woman to “not have custody” of her kids.  This leads to an all-or-nothing confrontation between moms and dads when it comes spending time with their children, as both parties want “custody.” In lieu of custody, we now have the twin concepts of “parenting time” and “decision-making responsibilit.y” Parenting time is the parenting schedule, who has what time with what child. Decision-making responsibility is who gets to make what decisions for the children. Both of these matters, if not agreed, are decided by the Illinois family law court based on the “best interests of the child.” “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a) “The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a) It’s all well and good to have a specific schedule with your children and to make specified decisions for your children.  But, kids are kids.  Things will change dramatically and sometimes the spirit of the final agreement is more important than parsing out each parent’s individual responsibilities.  Often, you just want to know that, no matter what happens, you’re going to effectively have 50/50 joint custody. I think this is a fine goal, and I suggest you read below on how to get 50/50 […]

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Quit Claim Deeds And Divorce In Illinois

When two people are married and buy real estate, there are incredible incentives to hold the property jointly. Jointly held property has the right of survivorship. If one spouse dies, the entire property passes to the other spouse without the hassle of probate court. “[A]n intrinsic feature of joint tenancy is the right of survivorship, which entitles the last surviving tenant to take the entire estate” Sathoff v. Sutterer, 869 NE 2d 354 – Ill: Appellate Court, 5th Dist. 2007 Furthermore, married people in Illinois, if they buy the home they’ll live in, they are automatically deeded the home as a tenancy by the entirety, which further protects the home from creditors. “Whenever a devise, conveyance, assignment, or other transfer of homestead property maintained or intended for maintenance as a homestead by both husband and wife together during coverture shall be made and the instrument of devise, conveyance, assignment, or transfer expressly declares that the devise or conveyance is made to persons, named and expressly identified in that instrument as husband and wife, not as joint tenants or tenants in common but as tenants by the entirety, the estate created shall be deemed to be in tenancy by the entirety.” 765 ILCS 1005/1c Joint real estate, however, must be unwound in an Illinois divorce as the parties divided their marital property.   When there is marital real estate in an Illinois divorce, there are three options: sell the house and split the proceeds, one spouse keeps the house, or the other spouse keeps the house. If one spouse transfers their interest in the property to the other spouse, they do so by preparing a quit claim deed.     What Is A Quit Claim Deed Any transaction involving real estate must be made by a deed. A deed memorializes the transaction between the parties. A quit claim deed is a deed that transfers ALL of one party’s interest to another party. “A quit claim deed conveys only the grantor’s interests in the property described therein,” Hulke v. International Mfg. Co., 142 NE 2d 717 – Ill: Appellate Court, 2nd Dist. 1957 Illinois has a very specific statute that outlines what a quit claim deed must say to be effective. “Quitclaim deeds may be, in substance, in the following form:    The grantor (here insert grantor’s name or names and place of residence), for the consideration of (here insert consideration), convey and quit […]

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