A “silver bullet divorce” begins with an emergency order of protection, typically heard “ex parte” (without the accused being present). This often results in the order being granted, which excludes the accused from the marital home and sometimes denies them access to their children.
Consequences of a Silver Bullet Divorce
The accused then spends months waiting for the order of protection to be resolved. By the time it is, the other party is settled into living independently, and the children are estranged from the parent.
The actual divorce becomes an uphill battle where the excluded parent must pay for a home they cannot access and work to regain their parenting time.
Immediate Steps to Counteract a Silver Bullet Divorce
Step One: File for Divorce
A savvy strategist will often only file for an order of protection, not divorce, leaving the court with limited remedies under the Illinois Domestic Violence Act. Filing for divorce invokes the broader protections of the Illinois Marriage and Dissolution of Marriage Act, which ensure more balanced considerations for parenting time and housing.
Step Two: Vacate or Modify the Order of Protection
If you’ve been kicked out of your home, you have the right to a rehearing within 14 days of filing a motion to re-open or vacate the emergency order of protection.
Understanding Legal Standards and Protections
Abuse and Harassment Definitions
Under Illinois law, “abuse” includes physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation. “Harassment” is broadly defined and can encompass actions that cause someone to be worried, anxious, or uncomfortable, even without overt violence.
Parenting Time Restrictions
If abuse affects a child, the court must restrict or deny parenting time for the alleged abuser. However, the Illinois Marriage and Dissolution of Marriage Act requires a higher standard for restricting a parent’s access, ensuring it cannot be unreasonably limited without serious endangerment to the child’s well-being.
Housing Considerations
A domestic violence court can grant exclusive possession of the marital home to the petitioner, often making it harder for the alleged abuser to stay in the home. In contrast, a divorce court must balance hardships to both parties and consider factors like alternate housing availability, employment impact, and the effect on relationships with family and community.
Challenging an Order of Protection
To fight an order of protection, attack the court’s findings and show a lack of past abuse patterns and no significant consequences from the alleged abuse. Highlight any improper separation of the child from their primary caretaker and compare the relative hardships resulting from the loss of the family home.
Misuse of Domestic Violence Act
Courts may vacate an order of protection if it’s found that the petition was filed primarily to interfere with custody or visitation rather than to prevent abuse. Bad intentions in filing can lead to vacating the order, allowing the divorce to proceed on equal grounds based on divorce principles.
Conclusion
If you’re facing a silver bullet divorce strategy, act immediately to protect your rights. Contact an experienced Illinois divorce lawyer to navigate these complex legal waters and ensure fair treatment in your divorce proceedings.