Filing an Order of Protection Against Your Spouse During an Illinois Divorce: All You Need to Know!

An Order of Protection, sometimes loosely referred to as a restraining order, is a legal tool designed to safeguard individuals during high-conflict divorces and other personal disputes. In Illinois, however, the term “restraining order” often refers to a financial order preventing parties from transferring or disposing of assets during a divorce. This common misuse can cause confusion, as an Order of Protection specifically addresses abuse, harassment, or other threats to safety.

In the context of divorce, Orders of Protection are vital for protecting the well-being of individuals and children facing immediate risks. Importantly, you do not need to be married to obtain an Order of Protection. Non-marital parties, such as those who share a child or live together, may also qualify if they meet specific legal criteria. This article explains the key steps, requirements, and legal protections an Order of Protection can offer during divorce proceedings in Illinois.

Types of Orders of Protection in Illinois

Illinois law provides several types of Orders of Protection, each suited to specific situations and timelines:

A. Emergency Order of Protection:

This type of order can be obtained quickly without the spouse present (ex parte), and if it is granted, it typically lasts 14-21 days.  This type of Order of Protection is typically suitable for immediate protection needs, and it is filed on an emergency basis.

B. Interim Order of Protection:

This order lasts up to 30 days and is often issued after an Emergency Order. It provides temporary protection while awaiting a full hearing, during which the other party can respond and present their case.

C. Plenary Order of Protection:

This long-term order provides protection for up to 2 years and can be renewed. It requires a full court hearing where both parties present evidence..

These types of Orders generally follow a sequence. An Emergency Order of Protection may lead to an Interim Order, which can become a Plenary Order if the court deems continued protection necessary after a full hearing. If no hearing occurs, the Emergency Order might expire, be vacated, or in some cases, convert into a Plenary Order by default if the respondent fails to contest it.

Grounds for Filing an Order of Protection Against a Spouse

Orders of Protection are granted to parties who need protection from abuse.  Abuse has a very broad definition under the  Illinois Domestic Violence Act. Some examples of reasons to obtain an Order of Protection are as follows:

1. Physical Abuse: Acts of physical harm or attempted harm.
2. Harassment and Intimidation: Unwanted behaviors that cause emotional distress.
3. Interference with Personal Liberty: Situations where freedom of movement or choices are restricted.
4. Willful Deprivation: Denying basic needs such as food, shelter, or medical care.

These behaviors qualify as grounds for an Order of Protection, particularly when they pose a risk to personal safety. Individuals can also seek an Order of Protection to safeguard a minor child if the child is endangered, even if the parent is not included as a protected party. Alternatively, the parent can be the protected party without listing the minor children. Animals, including pets, and certain types of property may also be included in an Order of Protection.

Who Can File for an Order of Protection?

Those eligible for an Order of Protection include individuals who:

• Are or were married.
• Share a child.
• Live together or have lived together.
• Are related by blood or marriage.

Current or former spouses, co-parents, and other family members all have standing to file under Illinois law. However, in some cases, they may need to file a separate action from the underlying divorce case unless all parties reside in the same household.

Step-by-Step Process to File an Order of Protection

1. Filing the Petition:

To obtain an obtain an Order of Protection, you would simply gather any evidence you have of abuse, go to the circuit court, and complete the necessary forms.  This includes the Emergency Petition for an Order of Protection and related evidence. The Evidence may include text messages, emails, photos of injuries or property damage, cell phone records, and police reports.

Your petition must detail specific incidents or threats and include any supporting documents as exhibits.

2. Emergency Order Hearing (Ex Parte):

After filing the emergency petition, you will appear in court (in person or via Zoom) the same day. You would need to wait for your case to be called. During the hearing, the judge will ask questions about the allegations in your petition. You must explain why you need an Emergency Order of Protection. The judge will determine at that time if an emergency order will issue.

If the judge grants the Emergency Order, you will obtain a return court date and the sheriff will then have to serve the Order of Protection on the Respondent.

3. Non-Emergency Cases:

If the court determines your situation does not qualify as an emergency, you will need to provide notice to the respondent before the court hears your case. In limited circumstances, the court may find no grounds for an Order of Protection and dismiss the petition outright.

Legal Representation

It is strongly recommended to work with an experienced attorney when filing for an Emergency Order of Protection. Proper legal guidance helps ensure your petition is clear and complies with all requirements, reducing the likelihood of dismissal due to a legal nullity.

Protections Offered by an Order of Protection in Illinois

An Order of Protection can provide more than just a restriction on contact. These legal tools offer additional relief to protect individuals, children, and even property in situations involving abuse or harassment. The types of protections available include the following:

• No Contact Orders: Prevents the spouse from contacting or approaching the protected individual at home, work, or other designated places.
• Temporary Custody of Children: The court may grant temporary custody of minor children to the petitioner if it determines that this arrangement serves the child’s best interests. The order can also limit or restrict the respondent’s contact with the children entirely on a temporary basis.
• Exclusive Possession of Residence: The court can order the spouse who is the subject of the order of protection to leave the shared home.
• Prohibition of Further Abuse or Harassment: The court can set clear limits on the respondent’s behavior to prevent future abuse or harassment. These protections may also extend to property and companion animals, ensuring their safety.

Enforcement and Consequences of Violating an Order of Protection

Having an Order of Protection in place means that law enforcement should, theoretically, make an immediate arrest if the Order is violated. Additionally, the State’s Attorney may file criminal charges against the violator, resulting in a criminal case.

For these reasons, it is vitally important that the protected party immediately call the police if a violation occurs. Reporting and documenting violations, such as keeping records or photos, is essential to ensuring proper enforcement.

How an Order of Protection Affects Divorce Proceedings

An Order of Protection not only provides immediate safety but can also have significant implications for divorce proceedings. These impacts extend to child custody arrangements, financial obligations, and the overall legal strategy, making it essential to align the Order with the broader divorce case.

Impact on Custody and Parenting Time:

An Order of Protection can directly change child custody arrangements, especially when the child’s safety is at risk. After filing a divorce or parentage/child support case, the court often combines it with the Order of Protection case. A Guardian Ad Litem or Child Representative may step in to advocate for the child’s best interests. When the Order of Protection includes a minor child, it reflects serious concerns about the child’s wellbeing. The court can restrict the offender’s parenting time, requiring supervised visits, limiting contact, or prohibiting overnight stays.

Financial Implications:

An Order of Protection can bring financial implications in a divorce case. When the court finds that the offender committed the acts described, the protected party can argue for attorney’s fees contributions. If the court awards custody of a minor child to the protected party and denies the offender overnight parenting time as a result of the Order, the offender’s child support obligations may increase significantly. However, spousal support is generally not affected by an Order of Protection.

Legal Guidance:

It is important to work with an experienced divorce attorney to align the Order of Protection with your divorce proceedings. A lawyer can ensure the Order is consolidated into related family law matters, like custody and child support, for stronger overall protection. Many people are unsure about what evidence to provide or which points to emphasize at an Emergency Order of Protection hearing. A lawyer can help ensure the petition and hearing focus on the most relevant details to increase the likelihood of success.

Key Actions and Takeaways for Filing an Order of Protection

1. Document Incidents Thoroughly

Write down details of abuse or harassment, including dates, times, and what happened. Evidence such as photos, text messages, emails, and police reports will strengthen your case. If possible, collect witness statements to support your petition.

2. File Quickly in Emergency Situations

If your safety or your child’s safety is at risk, don’t delay. Courts prioritize emergency cases, and filing as soon as possible shows urgency. Timing can be critical in protecting you and securing relief.

3. Be Prepared for Court

Judges will want clear, specific examples of why you need protection. Be ready to:

• Explain incidents calmly and factually.
• Present evidence that supports your claims.
• Focus on the most serious or recent threats when describing your case.

4. Know What an Order of Protection Can Do

These orders offer more than just physical protection. They can:

• Safeguard your children by limiting or restricting the offender’s parenting time.
• Protect pets and property from harm or interference.
• Prevent the offender from contacting or approaching you in any setting.

5. Work with a Family Law Attorney

Navigating the process alone can be overwhelming. An attorney will:

• Help you file a complete and compelling petition.
• Ensure you focus on the strongest points during hearings.
• Align the Order of Protection with any ongoing divorce or custody case for comprehensive legal protection.

Get the Legal Support You Need to Stay Protected

Filing an Order of Protection is an important step toward ensuring your safety and the safety of your loved ones. However, the process can feel complex and overwhelming, especially during an already difficult time. Having an experienced family law attorney by your side can make all the difference.

At Anderson Boback & Marshall, we specialize in guiding and representing Illinois residents with family law issues, including Orders of Protection, divorce, and custody cases. Our team will work with you to build a strong case, present clear evidence, and protect your rights every step of the way.  Book a Confidential Consultation with one of our attorneys.

Frequently Asked Questions about Illinois Orde of Protection

Can I protect my children in an Order of Protection in Illinois?

Yes, Illinois law allows you to include your children if their safety is at risk. This applies if they face direct harm, like threats or physical abuse, or indirect harm from violence in the home. Including children can lead to restricted parenting time or supervised visits for the offender. Bring evidence, such as police reports or messages, to support your request.

What happens if the respondent violates the Order of Protection?

If the respondent violates the Order of Protection, they can be arrested and face criminal charges. It’s important to report any violations to law enforcement immediately and keep records for enforcement purposes.

Can I file for an Order of Protection without a lawyer?

Yes, you can file on your own. However, working with a family law attorney ensures your petition is complete, focuses on the right details, and increases your chances of success in court.

How long does it take to get an Emergency Order of Protection in Illinois?

An Emergency Order of Protection can often be issued the same day you file your petition. These orders are granted ex parte (without the respondent present) and typically last 14 to 21 days, until a follow-up hearing.

If additional time is needed, the court may issue an Interim Order while preparing for a Plenary hearing. A Plenary Order, which offers long-term protection, requires both parties to appear in court and present evidence. This process may take several weeks, depending on the court’s schedule.

To File Efficiently:

• Submit your petition early in the day for a better chance of same-day review.
• Work with an attorney to prepare a complete petition and emphasize your need for urgent protection.

How Much Does It Cost to File for an Order of Protection in Illinois?

Filing for an Order of Protection in Illinois is free. The court waives all filing and service fees to ensure accessibility for those seeking safety. However, if you choose to work with an attorney, legal fees may apply based on the lawyer’s rates and the complexity of your case.