In the course of a marriage and especially a divorce, one party is going to say cruel and hurtful things to the other party. Sticks and stones might break bones…but words do hurt. Does mental cruelty and/or emotional abuse impact an Illinois divorce?

The document which starts a divorce, the summons, warns both parties to be nice to each other.

The summons “restrain[s] both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party” Ill. S. Ct. R. 101(e)(1)

Unfortunately, the summons’ admonition against abuse is unenforceable. Furthermore, Illinois courts barely weigh abusive behavior between couples at all.

Mental Cruelty Is Not A Ground For Divorce In Illinois

Before 2016 there were a multitude of grounds for divorce in Illinois. One of those grounds was “mental cruelty.”

After 2016, all of the grounds for divorce were eliminated in Illinois and replaced by requiring an Illinois divorce court to make the following finding before granting a divorce.

“Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)

Mental cruelty, in any form, would be sufficient proof that irreconcilable differences between the two parties exist. Of course, the subsequent filing of a Petition For Dissolution of Marriage also would prove that irreconcilable differences have caused the irretrievable breakdown of the marriage.

For better or for worse, Illinois divorce laws are not especially concerned with mental cruelty or emotional abuse.

Mental Cruelty’s Effect On An Illinois Divorce

Illinois courts really do not look at bad behavior much, if at all when allocating marital assets, awarding support or even determining parenting time.

Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)(emphasis mine)

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)

In Illinois, child support is a pure calculation without regard to a parent’s behavior. Illinois child support is “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)

Mental cruelty towards a spouse or other parent will not even affect parenting time between a parent and a child.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)

If the parties are married, the courts presume that the parents married each other and had children together because they agreed they would both be fit parents.

“It is presumed both parents are fit and the court shall not place any restrictions on parenting time.” 750 ILCS 5/602.7(b)

In reality, saying cruel hateful things that can be characterized as emotional abuse or mental cruelty will certainly affect a parent’s parenting time and especially their parental decision-making.

Emotionally Abusive Parents In An Illinois Divorce

Illinois divorce courts make two rulings in regards to minor children: 1) who makes the decisions for the children and 2) who spends what time with the children.

“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a)

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider…

the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making” 750 ILCS 5/602.5(c)(4)

Mental cruelty and/or emotional abuse is evidence that a parent cannot effectively communicate with the other parent.

Joint parental decision-making used to be referred to as “joint custody” in Illinois. “Joint custody requires extensive contact and intensive communication, it cannot work between belligerent parents.” In re Marriage of Drummond, 509 NE 2d 707 – Ill: Appellate Court, 4th Dist. 1987

The presence of an emotionally abusive parent will require the division of the allocated parental decision-making responsibilities.

An emotionally abusive parent should not expect to receive half of the allocated decision-making responsibilities. “Nothing in this Act requires that each parent be allocated decision-making responsibilities.” 750 ILCS 5/602.5(a)

In reality, the responsibility for decision-making is actually determined by the amount of time a parent has with a child. There is little to constrain a parent’s decisions when they are the only adult with the child.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.” 750 ILCS 5/602.5(d)

Parenting time is less impacted by bad parental behavior. A parent must merely be capable of facilitating the transition between the two homes without being abusive.

“Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time.” 750 ILCS 5/602.7(b)

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)

In determining the child’s best interests for purposes of allocating parenting time, the court shall consider…the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement” 750 ILCS 5/602.7(b)

Of course, if the parent is abusive towards the child, that parent can expect to have their parenting time curtailed or supervised.

Illinois divorce courts will consider “the occurrence of abuse against the child or other member of the child’s household” 750 ILCS 5/602.7(b)(9)

How To Get An Illinois Divorce Court To Look At Mental Cruelty Or Emotionally Abusive Behavior

Illinois divorce courts are very impatient in regards to “he said/she said” stories.

Mental cruelty and emotionally abusive behavior have to rise to the level of harassment for an Illinois divorce court to take note and do something.

“Harass” or “harassing” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, that would cause a reasonable person emotional distress and does cause emotional distress to another.” 720 ILCS 5/26.5-0.1

Upon a finding of harassment, a court can order a temporary injunction against the abusive party to cease such behavior.

An Illinois court may issue “a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:

enjoining a party from striking or interfering with the personal liberty of the other party or of any child;” 750 ILCS 5/501(a)(2)(iii)

““Interference with personal liberty” means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.” 750 ILCS 60/103(9)

An injunction once issued forbids a party to a case from doing something. In the case of an abusive spouse or ex-spouse, that injunction will forbid the abuser from doing whatever behavior the court deems to be abusive.

The penalty for engaging in further abusive behavior is a finding of indirect civil contempt which can result in fines or even jail time.

While an Illinois divorce court can enjoin a party from committing further abuse, courts typically rely on the their power to issue an order of protection.

The standard of behavior deemed to cause “emotional distress” in order to issue an order of protection is specific and, frankly, high. If the abuse is not an outburst in public, then it must be “threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(7)(vi)

When the parties to a divorce are parents, allegations of emotional abuse can be thoroughly investigated by a Guardian Ad Litem or Child Representative. The Guardian Ad Litem or Child Representative is likely to take allegations of emotional abuse seriously because they inevitably spill over into the parent-child relationship. A Guardian Ad Litem will subsequently report the emotional abuse to the court which will, no doubt, color the judge’s opinion of the parties and their allocated parenting time and parental decision-making responsibilities.

Emotional abuse never justifies physical retaliation in the eyes of Illinois’ law.

“It has long been held that one may not provoke physical retaliation on the part of his or her spouse and complain of such retaliation unless it is out of all proportion to the provocation.” Stanard v. Stanard, 247 NE 2d 438 – Ill: Appellate Court, 3rd Dist. 1969

If your spouse is being cruel…get a divorce already and exercise your rights. If you’re being accused of amorphous claims such as “emotional abuse” and “mental cruelty” you need to remind the court that those terms carry little weight under Illinois law. Either way, contact my Chicago, Illinois family law firm to properly protect yourself from your spouse.