Domestic Violence in Illinois a New Weapon for the Soon to Be Divorced

 Posted on March 26, 2014 in Family Law

According to The Washington Times, "Staggering statistics from the United States Office on Violence against Women (OVW) claim a woman is assaulted or beaten every nine seconds. Domestic violence is the leading cause of injury to women in the United States. Three women perish at the hands of abusers daily." Nonetheless, bringing false charges of domestic violence has become increasingly popular as the weapon of choice between spouses or partners about to undergo a divorce or paternity case.

Spouses or partners frequently set up the other side in order to claim that they were victims of domestic violence.  To be charged with domestic battery in Illinois, the violence itself does not have to be particularly excessive, besides obvious acts of violence such as beatings  or other events that cause injuries, domestic battery is defined as any "physical abuse," which can include pushing, shoving, and other touching if not by consent.

In the divorce and paternity courts of Illinois, one partner may make a criminal complaint charging the other with having been pushed, shoved, tripped, or even spit upon and thereby have that person charged with domestic battery. Why, you may ask,  is this done? Frequently it is a tactic to try to have the other party removed from the joint home the partners occupy or both parties reside. If both parties live in the same home as joint owners or occupiers than the court will not evict either party from their own home unless there is an actual act of violence or physical violence. So be wary should a divorce or paternity case be brought up;  your partner may try to claim an act of violence by you in order to have you evicted from your own home during the course of the case.

The problem with falsely claiming that your partner has committed an act of violence and then calling the police is that they are not only subject to the order of protection and removal from the home but they are then charged with domestic battery, which is a serious criminal charge as well.

10 Reasons Why You Don't Want to be Charged with Domestic Violence  in Illinois

1. When you are charged with domestic battery, you must defend yourself in the criminal courts. Even if your partner decides later to drop charges the state may not let them. It is in effect the state of Illinois bringing the charge not your partner. The state has an interest in protecting victims of attacks resulting from domestic violence. So that even if your partner changes his or her mind the state can subpoena your partner as a witness against you in the trial of the domestic violence case.

2. It is expensive to defend yourself in a domestic violence case. Normally you would obtain an attorney have to pay fees in order to show that you are not the perpetrator of violence perhaps you were the victim or such other defenses as may be available.

3. You have to go through the anxiety and grief of a trial if the State's Attorney are representing the State of Illinois refuses to reduce the charges to a lesser offense such as disturbing the peace. The claim of physical violence once made is rarely reduced to a lesser offense voluntarily by the State's Attorney. The State's Attorney has no real reason to reduce the charge since frequently abused partners are wrongfully coerced by the abuser into trying to drop the charges.

4. Defending yourself from a charge of domestic violence in Illinois takes a considerable length of time, sometimes several months before the case actually is assigned and goes to trial. You have the choice of either a trial by jury or trial before a judge. Since most judges hearing domestic violence cases have crowded dockets they tend to discourage those who want a full jury trial. In fact, many defense lawyers do not choose juries because  if they lose in front of the jury, the trial judge may in fact  assess a penalty up to one year in prison even if the domestic battery is a misdemeanor. Likewise, although trial by jury is a guaranteed right, there's no guarantee that the jury will see it your way. Quite the contrary, if your partner is an effective liar and you have difficulty even telling the truth  the odds are stacked against you. Frequently you're better off with a trial before the judge who may see your case is one of the lesser cases of domestic violence since no one was actually hurt although violence occurred.

5. Once convicted of domestic violence, the Judge in your case has no authority to grant you supervision. Supervision once given and served without any further incidents can be taken off or expunged from the record. This is not possible in a domestic violence case because the law does not permit supervision to be ordered by the judge once there is a conviction.

6. Even if the charge is a misdemeanor rather than a felony (both are possible under the domestic violence law in Illinois) a Class A Misdemeanor conviction is a serious offense. The Illinois Code of Corrections defines a misdemeanor in this way: "Misdemeanor" means any offense for which a sentence to a term of imprisonment in other than a penitentiary for less than one year may be imposed. See 730 ILCS 5/5-1-14. A Class A misdemeanor offense is ranked as the most serious misdemeanor. It is one step below a felony offense. The judge is permitted to sentence the defendant to up to one year in jail and fine him $2,500. See 730 ILCS 5/5-4.5-55.

7.  Many times the real damage in losing a domestic violence case for the defendant in Illinois is that he or she will have to domestic violence charge on their permanent record. Present and future employers in doing a criminal background check will see the charge and most likely deny do employment because of it. a domestic violence conviction cannot be taken off your record or expunged.

8. The additional damage to losing a domestic violence case is that if you happen to be going through paternity, divorce, or child custody case is that the fact of your conviction many times can be used in that case against you. you'll hear it said over and over again that you are convicted of domestic violence and this may very well do future claims for child custody, unsupervised visitation with your child, and result in a lesser good deal for you and in your divorce. This, despite the fact that Illinois provides that fault should not be a basis for awarding property or granting or denying maintenance (alimony).

9. I will tell you from my experience it that your conviction of domestic violence will be repeated over and over again but not just in your divorce case or paternity but in every post judgment part of that case over many years such as when you go back to Court to simply see your child,  to enforce your child visitation or try to expand your visitation rights.

10. Quite simply your kids will hate you for it. Once convicted your partner will tell your children as they grow up that their father or mother is an abuser. No one will believe your denial.

So don't even think about using physical abuse against your partner. To protect yourself from false charges see my blog: "Stay in Your Home During a Divorce." For legal counsel in your divorce or family law case, contact the Law Office of Martoccio & Martoccio at 630-920-8855.