Domestic Violence And Family Law Questions And Answers
As summer approaches, incidents of domestic violence spike. What are some tips to alleviate triggers that lead to domestic violence and how can family members in a household give each other space?
First, understanding the change in routine is important. Although most kids have been doing e-learning due to the pandemic, transitioning from a school schedule to a summer schedule is still impactful. To help create some sense of normalcy when dealing with this change, signing the children up for different camps or programs that are offered for weeks at a time eases that transition to having the kids at home and not being busy with school work.
Additionally, incorporating a summer camp or activity schedule as part of the children’s summer routine will provide them with an outlet for that extra energy they usually release in the school setting, especially if you’re dealing with either a dissolution of marriage or at times a violent partner. Therefore, making sure that there are activities for everyone to do, while still being able to get out of the house and not develop some sort of negative Stockholm Syndrome is always good at least for the children.
Recognizing a history of how your partner has reacted in the past if there have been any incidences of direct domestic violence, is important as it will help you figure out what you should expect if it happens again in the future. It is important to know what to do if an incident of domestic violence occurs The first thing you should do is call the police department to make a record of the incident and get an order of protection.
Many times, the most common thing we see in situations of domestic violence is that an individual will come into the office seeking an order of protection weeks after an incident has occurred. The individual has likely not made a report to the police nor sought an order of protection immediately after it occurs. The individual may have taken photos of the bruises, but they did not go to a hospital or make some type of report of the instance to a government agency.
At that point, the court isn’t going to think that there is an emergency where an order of protection can be obtained, unless, something happens again. But, the last thing we want is to have a second episode of domestic violence for an individual to feel safe and protected.
If an instance were to occur, act quickly, and act in a way that you know the court is going to see what you did. Don’t take matters into your own hands and don’t get more family members involved to straighten things out, because reacting like this will create more violence. Involve the authorities who are going to keep accurate records of the situation. That way, a court knows you wanted the legal system involved from the start to resolve this physical dispute.
Another thing, that people should always try to do is engage in counseling themselves. If there are incidents of domestic violence, rarely is that a one-sided issue. Without blaming the victim of the domestic violence, there are always certain triggers and factors that lead up to a domestic violence incident. Identifying and addressing those factors in individual or couples counseling can strengthen a case.
These are just some tools to better handle domestic violence situations if in the future, without going to court you have a legal case Whether these tools include recognizing warning signs early or recognizing you’re in an abusive situation and finding a way out of that situation– if it’s dating or another relationship– all of those concerns can be addressed through counseling, which is a good preventative measure to help someone who is experiencing this type of issue.
Additionally, there is usually a spike of domestic violence in the middle of the summer surrounding drinking events. Drinking is a relevant issue related to domestic violence. If you are with a person who has been abusive in the past, and you deal with another domestic violence issue, it is going to be a lot harder for you to explain what happened to the police rationally and calmly when they come to you. Therefore, it is important to make sure that you’re avoiding excessive alcohol consumption or events where there’s going to be excessive alcohol consumption if you know that your partner or spouse is likely to consume an excessive amount of alcohol as well.
If an individual has encountered domestic violence, what steps should they take to protect themselves and other family members?
As mentioned earlier, if there is an incident of domestic violence, first call the police so you can get a report. After making the report you will want an incident number and the actual report itself. If the police department can provide it to you immediately that is ideal, if not just record the report number to bring to your local courthouse.
If you live in one of the districts of Chicago, you will need to know which courthouse is closest to you. When you go there, immediately go to the clerk’s office in the courthouse. They will direct you to the victims of domestic violence counselor who can help you get in front of the judge for an emergency order of protection.
The emergency orders of protection are for a limited time– usually a maximum of 21 days. During those 21 days, the court is going to attempt to inform the abuser of the order of protection being requested. .. After those 21 days, there will be a hearing for a plenary order of protection, which is a two-year order of protection.
These timelines are the longest terms that the Illinois statutes are allowed to provide for an order of protection in a civil matter. At the hearing for the plenary order of protection, it is important to make sure that you have specific dates, times, and incidents of violence that have occurred.
The violence does not always have to be strictly physical; it can also consist of threats; it can be emotional; it can be towards other people who you’re protecting. If there is an instance where you are dating someone and they abuse your kids, you can still be a protected party. You can also protect your kids through the order without having them show up to court and give any testimony.
You also want to think about having your residence and workplace protected. You want to make sure that the abusive individual stays away from all points of contact with you to prevent any potential problems at these places with other individuals as well. If you take photos of any incident that occurred, sometimes you’ll have bruises or other damage to yourself. (?)
In addition to filing a report and seeking an order of protection, it is also a good idea to try and keep as many records as possible for any injuries to you or damage to property, to show the judge. If you have photos of damaged property, it is beneficial for the judge to know the value of that property, because they may award repayment for the damaged property too.
A lot of times we see situations where someone may never be physically violent to another person, but if they go into your home or take your things and damage those items, you can still be protected. In these instances, you should be able to retrieve some of your things or at least be compensated for the damage.
You mentioned there was a two-year Order of Protection – are there any Orders of Protection that are less than two years?
If you’re using a victim advocate, who is also your counselor, they will ask the court for a two-year order of protection just because it’s the maximum. The judge has the discretion to award, less than two years, if they don’t feel like a two-year order of protection, is necessary. If for instance, you have an abusive relationship, and the other party shows up and informs the judge that he or she will be leaving the country or moving out of the state, the judge may order a shorter order of protection due to the nature of the situation because it won’t be necessary for the order of protection to remain in the police database.
Generally, the order of protection goes into the leads system for the police and they don’t want it to stay in the system for two years if the person is not going to remain in the state for that long. After that first emergency 21-day order, if there hasn’t been service, meaning the other person hasn’t received a copy of the order of protection from the sheriff, the judge can’t extend that emergency order until they’re served for a maximum of 120 days.
So even if you don’t have service upon the other party immediately, this does not mean that you’re going to lose your order of protection. But, you should still make sure to show up to that next 21-day hearing to request an extension until there is full service and explain to the judge that there hasn’t been service yet and that you are still working on it.
How are courts designed to help individuals who have experienced domestic violence?
Courts are aware that most domestic violence incidents go unreported. If there is a history of you being abused in your relationship, and you’re coming forward for the first time, don’t be scared to come forward. Just because you haven’t reported anything in the past, doesn’t mean that you should be scared to come forward. Even if you don’t have all of the other types of evidence I was discussing – whether it’s photos, videos, police reports, etc., don’t be scared to come forward to attempt to seek help.
The judges are well aware that people who are abused do not always come forward immediately. They are aware that sometimes people haven’t been properly instructed on ways to make sure they’re maintaining records for those incidents. You can still get an order of protection just based on your testimony, but make sure to provide truthful testimony to the court, so they can make the best decision for both parties moving forward.
How important is reporting an act of domestic violence to the police?
It’s very important. Step one is to make sure that you get an incident report number from the police. Step two is to go immediately to the court for the order of protection. It’s kind of important to note that I didn’t mention talking to an attorney beforehand. At any point in time, you can go and talk to an attorney about these things.
One of the concerns that a lot of people have is that they’re scared since they’ve just been assaulted, and they want to go immediately to court. Any attorney should always recommend that you go directly to the court to try and get the emergency resolved as quickly as possible. Just like when you call into a doctor’s office, and they say if this is an emergency, please hang up and call 911.
That’s my exact advice, if you’re having an emergency, please seek help from emergency first responders first, and then come through an attorney afterward, who can help guide you through that process of the plenary two-year order of protection. Make sure you’re safe first, then go to an attorney.
If you need a little more guidance, feel free to set yourself up with a consultation. Don’t wait to see if you can find the right attorney first. If you’re scared for your life, or your children’s lives, or scared for damage to your property, and you’re scared for your work balance because someone may appear at your job, always go to the court first as quickly as possible to make sure that you can feel safe and start resolving whatever issues you have.
How can attorneys help their clients with domestic violence cases?
Any attorney who handles domestic violence or family matters will know how to amend or correct any issues with how you’ve done your filing for the emergency order of protection, and if they need to make any of those changes. The court is going to be very lenient with the fact that you didn’t show up with an attorney.
The judges that I’ve had to deal with for emergency orders of protection and plenary orders of protection are some of the most understanding judges that I’ve ever been in front of. They know the circumstances and they’re there to be a resource to make sure that everything gets resolved in a way that’s going to keep people safe and allow individuals to feel that justice was done.
If a spouse is anticipating an inheritance, how can that inheritance be affected during the divorce process?
If you’re considering receiving a large inheritance, you’ll have wanted to make some mention of that in a prenuptial agreement. However, if you do not have a prenuptial agreement t, then you want to think about whether or not you’ve made a gift of any inheritances to the marriage. If you haven’t received that inheritance yet or if you’re anticipating receiving an inheritance, but you haven’t received it yet, your spouse has no claim to it.
For example, if I’m married, and my spouse and I want to get divorced, and I think that when my parents pass away, I’m going to be receiving $100 million from them, she doesn’t get to claim half of the 100 million dollars that I have not even received yet. It’s never been a benefit she’s had during our marriage. If it is something that I received during the marriage, then I am going to want to make sure to keep that asset separate.
If you haven’t kept the inheritance separate, you’re going to want to try and determine how much of that asset has been made a gift to the marriage. If it is one individual asset, maybe a property, or if it’s a bank account—usually it is just actual money– how much of that is analogous to the marriage, and how much of it is your spouse going to be entitled to it?
Who determines if an inheritance is a gift of the marriage?
That is determined by what you use the finances for. For example, you receive $100,000 from a family member when they pass away. If you take $50,000 of that and put it towards a down payment for a house that you and your spouse are on the title for, that $50,000 portion is likely to be seen as a gift to the marriage. The remaining $50,000 would not be considered a gift to the marriage and may be seen as a separate inheritance that. But it is important to be aware that the remaining amount can likely lead litigation because your spouse i may want access to that remaining amount.
For example, if you were in the early stages of divorce and got $100,000 from your parents, keep it separate and apart, and keep it in a bank account that has your separate name on it. Make it very clear that the money has always stayed separate and apart. Most of the time, if you’ve done all of those things, you’re going to be able to retain that inheritance.
However, there are circumstances where if one party is the only breadwinner, and they have taken care of all of the expenses and provided for both parties and their minor children, that certain amount of inherited money may be awarded as marital property, but keeping things separate generally will protect any inheritance that you have coming in.
When it comes to filing for divorce, are there any benefits or downfalls to being the individual who files first?
The biggest benefit to filing first is that you’re going to control the pace of the lawsuit. Anytime you are the petitioner or the plaintiff in a lawsuit, you get to control the speed. You also get control if the lawsuit continues going forward. If at some point in time, you and your partner want to reconcile and get back together, you can dismiss your petition. If you don’t file first, you have to trust that your partner is possibly going to withdraw their petition if you’re wanting to reconcile.
So, controlling the tempo and the pace of the lawsuit is your biggest benefit. The other benefit of filing first is that you’re probably going to control the discovery process. If your partner wasn’t expecting you guys to get divorced, they’re not going to have hidden or moved around to the assets. So, you’re likely to be able to get a head start on where all the assets are, and make sure that you receive full financial disclosure from your spouse.
Sometimes people have moved assets around during the marriage thinking they’re never going to get caught; there are things you can do to still reclaim some of that. If someone inappropriately spent marital funds on non-marital things that have been very one-sided, there is a notice that you can file called a Notice of Intent to claim dissipation of marital assets.
So, there are some ways to claw back marital money that was spent for purposes that were outside of the marriage, but it’s much less likely, and it’s much more of an uphill battle. Filing first gives you the competitive edge on knowing where finances are.
Some women may consider changing their last names back to their maiden names during a divorce. When is this a good idea? Or is it purely just a matter of preference?
It’s a preference thing. Generally, when we do the dissolution of marriage and we have our final judgment, we work into our language that the party who has changed their last name has the option to change their last name back if they would like to. Always give yourself the option.
Maybe you don’t care and you want to leave your last name as is. If you had a long marriage, and you’ve met the majority of the people in your life after that marriage, and they know you by that last name, it’s okay to keep the last name that you took during the marriage.
However, you should leave yourself the option to change it as part of your judgment, in case you’d like to do that in the future. You’ll also have another opportunity to change your last name if your spouse were to get remarried. To make sure it doesn’t become an issue in the future, include a last name provision in your judgment for dissolution stating that you do have the choice to be able to change your last name.
If you get married before receiving a professional degree, and then you receive your doctorate, or master’s, and it has your marital last name on it, you may want to keep it so that way your clients know who you are. We see this with attorneys and doctors all the time where they either keep their last name before the marriage because they want to make sure they have consistency, or they don’t change it after the marriage because they want to have that same consistency. Those scenarios come up. Still, having the option written into your judgment to change your name back gives you flexibility in the future. Whether or not you exercise it will be a personal choice.
The Law Office of Fedor Kozlov has been providing expert legal services for disputes regarding family law for years. Our divorce lawyers in Schaumburg, Illinois specialize in family law cases about domestic violence, divorce, spousal maintenance, equitable distribution, tax implications, and child support. We offer highly personalized and responsive legal services to all of our respected clients.