Domestic Abuse and Dissolution of Marriage
“Every person shall find a certain remedy in the laws for all injuries and wrongs which he [she] receives to his [her] person, privacy, property or reputation. He [she] shall obtain justice by law, freely, completely and promptly.”
-- The Illinois Constitution Crime Victim’s Bill of Rights
If your spouse does the same in Illinois, you can have your spouse arrested. Most likely the police would recommend that you see a lawyer and/or get an order of protection. You could file a petition to have your marriage dissolved and ask that your spouse be enjoined from such conduct or be punished for contempt of Court. Those are the remedies available to an abused spouse.
The Illinois Legislature and the Governor have passed and signed into law, as of January 1, 2016, a new Illinois Marriage and Dissolution of Marriage Act. As far as physical and/or emotional abuse are concerned, nothing in the new act has made any changes concerning abuse. In Illinois, the doctrine of interspousal immunity prevents an abused spouse from getting financial recompense for acts of physical or emotional abuse inflicted by a spouse.
The new divorce law, like the old, mandates that when it comes to awards of maintenance (alimony) or the division of the property of the parties, the Court “SHALL NOT TAKE FAULT INTO ACCOUNT.” That is to say the law enjoins Courts from considering the physical and emotional abuse done to one spouse by the other when it comes to support and property division.
Is that really fair? What the law does is prevent Judges from doing what they do best – make decisions on questions of fact.
You might hear someone say that the purpose of the law is to take the animosity out of divorce. And they are not kidding - they are dead wrong, but they are serious.
An arrest of an abusive spouse provides no economic recompense to the abused. An Order of Protection is good, but again the abused spouse receives no compensation from the abuser. A Contempt of Court ruling might – but rarely does – result in some time in jail and a reimbursement of some of the attorney’s fees run up by the abused in the process.
It is not radical to insist that Illinois divorce law comport with the guarantees of the Illinois Constitution. At present, the Illinois divorce law plainly contradicts constitutional guarantees.
The law calls for a fair and equitable division of the assets and debts of parties in a divorce action. So why should not an abused spouse be awarded a greater share of the marital assets? Why should not an abused spouse be awarded more money in maintenance? Why should not an abused spouse be assigned less of the marital debt than the abuser?
Illinois is not a community property state, but it’s a somewhat rare case that marital assets are divided other than 50/50. When the property division is otherwise it is because one party has substantial non-marital assets and that the non-marital property (generally property owned before the marriage, inheritances, and gifts) has been assigned to the party who owns them.
By and large, domestic abuse is aimed at women. Having practiced divorce law for decades, however, there have been instances of physical and emotional abuse directed at men, thought that is rarely the case.
It would be worth your while to ask your State Representative why the law is as it is. They might say it saves time in divorce cases – that will not even rise to the level of a bad joke.