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Section 215 (the “Section”) of the Illinois Domestic Violence Act of 1986 (the “Act”) sets forth two different types of orders of protection – mutual orders of protection and correlated orders of protection. The Section expressly states that mutual orders of protection are prohibited and correlated orders of protection are allowed as long as certain procedural safeguards are followed. However, the Section does not expressly state the difference between mutual and correlated orders of protection, and, as a result, the Section is ambiguous.

The Ambiguity Between Mutual Orders of Protection and Correlated Orders of Protection

This ambiguity has caused confusion for litigants and courts trying to interpret the Section. For example, if a boyfriend and a girlfriend both file petitions for orders of protection against each other, can the court grant both the boyfriend an order of protection and the girlfriend an order of protection? Or is the litigant who files their petition last in time automatically precluded as trying to obtain a mutual order of protection? These questions are especially important if the litigant who files their petition last in time is the person who was actually abused and actually needs an order of protection. Recently, however, these questions were answered by the Illinois Appellate Court in In re Marriage of Kiferbaum. 2014 IL App (1st) 130736. In Kiferbaum, the Illinois Appellate Court explained the difference between correlated and mutual orders of protection and drew an important distinction between the two.

The Distinction Between Mutual Orders of Protection and Correlated Orders of Protection

In Kiferbaum, a former husband file an emergency petition for order of protection against his former wife on July 12, 2012. The trial court denied the former husband’s request for an emergency order of protection and set the matter for hearing on the issuance of a plenary order of protection. On July 31, 2012, the former wife filed a petition for order of protection against the former husband. The matter was continued to January 30, 2013, for hearing, at which time the trial court granted the former husband’s petition for an order of protection and set argument for the former husband’s motion to dismiss the former wife’s petition on February 5, 2013. On February 5, 2013, the trial court granted the former husband’s motion to dismiss, finding that the Act does not permit mutual orders of protection and only allows for correlative orders, which the trial court interpreted is out of state mutual orders of protection. The former wife appealed the trial court’s decision. 2014 IL App (1st) 130736, ¶¶ 12-17.

After discussing the Act and the relevant case law, the appellate court reversed the trial court and found that the former wife was seeking a correlative order of protection, which is allowed by the Act. The appellate court discussed the distinction between mutual and correlated orders of protection:

Mutual orders of protection typically occur within the same document, arising from a singular pleading and proceeding, despite the fact that one party may not have even desired an order of protection. The problems with mutual orders of protection are plentiful and have been well documented to include everything from violating due process, to the court’s treatment of these orders, to implementation by the parties and the police, to actually exacerbating the violence and abuse against the abused party. Accordingly, given the recognized deficiencies with mutual orders of protection and the plain language of the statute, mutual orders of protection are clearly prohibited so as to further its grander goals.

However, correlative orders of protection are not the same as mutual orders of protection and the plain language of the statute providing separately for each type of order indicates the legislature’s clear understanding of this. Both the Illinois Domestic Violence Act and the Code of Criminal Procedure distinguish the two orders and provide similar language discouraging the entry of correlative orders. Importantly, both sections allow for such orders if a separate action is commenced and completed pursuant to the requirements of each statute. Therefore, unlike mutual orders there is not a straight prohibition on correlative orders of protection.

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Unlike the flat prohibition of mutual orders, the statute allows for correlative orders where separate pleadings, notice and proof of abuse are provided by each party seeking an order of protection. The statute further requires that a separate order be issued in accordance with the other provisions of the Illinois Domestic Violence Act. 750 ILCS 5/60-215 (West 2010). As addressed in the aforementioned law journals, this process alleviates many of the important concerns that require prohibition of mutual orders. This also protects the court and the parties from the issue Justice Reid’s dissent highlights of a race to the courthouse to bar an adversary from seeking an order of protection. If correlative orders of protection were also flatly prohibited, it would leave open the possibility that an abuser could foreclose the ability of the abused to receive protection by the court and law enforcement not only physically, but in legal proceedings. This conclusion would run completely against the purposes of the Illinois Domestic Violence Act.

Id., ¶¶ 32-33, 35. Based on its analysis, the appellate court found that the former wife complied with all the procedural safeguards required for correlated orders of protection, to wit: she began a separate action under the Act, she filed a separate written petition for order of protection, she supported her petition with an affidavit, she provided notice at all parties, and she was prepared to present separate proof of her allegations at hearing. Id. at ¶ 36.

The Conclusion Regarding Mutual Orders of Protection and Correlated Orders of Protection

The Kiferbaum decision teaches us that mutual orders of protection arise from the same pleading and proceeding and occur within the same order. Mutual orders of protection violate due process and are prohibited. Correlated orders of protection, however, are allowed as long as certain procedural safeguards are satisfied, including separate pleadings, notice, and proof of abuse, and separate orders must issue.