Way back in the day, emotional abuse, which was then called mental cruelty, was basically the only way to obtain a divorce. Then, in 1969, incoming California Governor Ronald Reagan signed a revolutionary no-fault divorce law. Either spouse could obtain a divorce based on irreconcilable differences. Ironically, the conservative Reagan signed this law, but during the campaign, he promised to “put the welfare bums back to work” and “clean up the mess at Berkeley.”
Most states, including Illinois, almost immediately adopted similar laws. In 2016, Illinois took the next step forward and banned most evidence-based divorces, including emotional abuse and mental cruelty. No-fault divorce usually shifts the focus away from the parents and onto the children. That’s arguably the way things should be.
However, emotional abuse is still relevant in some situations. That’s important for everyone because such households usually cause lasting damage to a child’s psyche. But the rules of evidence are tricky in the pure no-fault divorce era. Therefore, if this issue is affecting your family, you need Naperville divorce attorneys specializing in emotional abuse to stand up for your rights, and your children’s rights, in court.
When Emotional Abuse is Relevant
In a way, the marriage dissolution itself is the least important component of a divorce proceeding. Once a spouse files, unless the spouse withdraws the proposal, divorce is almost always inevitable. But the devil is in the details, as the old saying goes. And emotional abuse is highly relevant in these areas.
Financial Matters
First, let’s look at some ways emotional abuse could be relevant in property division matters. Judges may not directly consider evidence of emotional abuse in this area. However, such abuse could be an element, and possibly a decisive element, in one of the following recognized areas:
Factors like emotional abuse take center stage in Illinois property division matters because the Prairie State is an equitable distribution jurisdiction. The marital estate, which includes assets and debts, must be divided equitably between the spouses. That’s usually not the same thing as an equal division.
Now, let’s look at emotional abuse in a divorce and spousal support payments. The aforementioned 2016 law also significantly re-worked the alimony provisions in Illinois. Now, spousal support is calculated much like child support, at least in most cases. The judge typically uses an algebraic formula that considers the income disparity between the parties and the length of the marriage. X plus Y equals Z.
However, the judge must first make a preliminary determination that alimony is available. In some states, spousal support is pretty much automatic. However, in Illinois, there is a presumption that spousal support is unavailable. Even if a spouse overcomes this presumption, there is another presumption that the judge must award the least amount of spousal support possible.
Many of the same property division factors listed above are relevant in this discussion. However, there is a greater focus on future earning power. If a Naperville divorce attorney specializing in emotional abuse shows, by a preponderance of the evidence, that emotional abuse affected a spouse’s future earning capacity, a court might be willing to award long-term alimony as a form of income redistribution.
Parenting Time
Emotional abuse in any form is highly relevant to the parenting time division, both in an initial determination and in a subsequent modification.
Mistreatment in a marriage, especially emotional abuse, can take many forms. Usually, this abuse is verbal. However, it could also be financial or sexual. The wife might believe that the Husband is not good with money and therefore remove his name from a joint account or reduce his account management privileges. Additionally, some people use the denial of sex as an emotionally abusive tool.
Sexual abuse usually has little to do with the children. But verbal or financial emotional abuse often has everything to do with the children. Frequently, children are the victims of abuse in these situations, even if they were simply caught in the crossfire. At the very least, they are usually witnesses. Such abusive behavior normally means sharp visitation restrictions. We’ll look at these restrictions in a moment.
Additionally, emotional abuse often merits a protective order. Contrary to popular myth, a protective order is much more than a piece of paper. This order allows abuse victims to give third parties, like schools and daycares, notice of the problem. Additionally, many law enforcement officers do not respond to domestic abuse calls very rapidly. But a violation of a court order is in a different category.
Emotional abuse visitation restrictions usually include supervised visitation and a counseling requirement. Moreover, most Naperville divorce attorneys specializing in emotional abuse arrange for child pick up and drop off at a neutral, public location, like a McDonald’s. These provisions usually mean drama-free exchanges.
If the abusive spouse changes his or her ways, the judge is usually willing to modify the visitation restrictions and/or protective order. Evidence of this change usually includes a psychologist’s report as well as other circumstantial proof.
Methods of Proof
We have looked at the “when” of emotional abuse evidence in a divorce proceeding. Now, let’s examine the “how.”
In general, the burden of proof in a civil claim, including a divorce case, is a preponderance of the evidence, or more likely than not. If two equally-sized stacks of paper are side by side, and someone moves a sheet from the right to the left, the stack on the left is taller than the one on the right. So, a little evidence goes a long way.
Witness Statements
Teachers, doctors, daycare workers, neighbors, and the spouses themselves are the most likely emotional abuse witnesses. The rules for ascertaining the credibility of a witness are rather complex, so strap yourselves in.
Normally, if a person overhears part of a conversation, such as emotionally abusive words, such testimony is not admissible in court. But here’s the tricky bit. The hearsay rule only applies if the statement is admitted for the truth of the matter asserted.
Assume a teacher hears Husband tell Wife that she’s worthless. The teacher could probably testify about this matter in court. A Naperville divorce attorney specializing in emotional abuse isn’t using this testimony to prove that a Wife is worthless. Instead, the lawyer just wants to show that the Husband said these words.
Competency to testify could be an issue as well. Some witnesses have no other recollection of the event. If they clearly remember what Wife said on a certain date but cannot remember what movie they saw that night, their testimony is suspect. Moreover, some witnesses are clearly biased, usually because they are emotionally connected to a spouse in some way.
Frequently, competency issues go to the weight and not the admissibility. So, the judge allows the witness to testify, and jurors decide for themselves how much weight, if any, to give this evidence.
Documentary Evidence
Most emotional abuse divorces involve social services investigations since as mentioned, parenting time is usually a hotly-disputed area in these cases. This report exemplifies many of the issues in this area.
Usually, a competent professional must prepare the document. A licensed social worker must prepare the social services report. Furthermore, the report should be regularly kept during the normal course of business. Finally, the report’s conclusions must be consistent with industry or other standards. A person cannot express his/her own opinions and call the document an official report.
Photographic evidence of emotional abuse, like video camera footage, must be properly authenticated as well. Usually, the person responsible for maintaining and operating the camera must testify that the images it captured truly and accurately depict the events which transpired.
Reach Out to a Strong-Willed DuPage County Lawyer
Any abuse allegations could significantly affect a family law case. For a free consultation with a Naperville divorce lawyer specializing in emotional abuse, contact Keller Legal Services. We have offices throughout Chicagoland.
