For those starting divorce proceedings with an alcoholic spouse, I hate to say it, but prepare for a difficult road ahead. The process could be long, challenging, frustrating, and heartbreaking, and it will likely be emotionally taxing, scary, and overwhelming at times. However, staying in a toxic and possibly dangerous relationship is not the answer. In this article, I will discuss how to prove alcoholism in divorce.
A question clients in these circumstances often ask is, “How do I divorce my alcoholic spouse?” First, it is important to remember that most states, including Illinois, are “no fault” divorce states. This means that even if your spouse’s alcoholism is the primary reason you want a divorce, the court cannot use this as a basis to divide the marital assets and debts up to your advantage. In other words, when it comes to the division of marital assets and debts, in Illinois, marital assets and debts are divided 50/50. However, when children are involved, the courts are very inclined to safeguard the children, and will consider your spouse’s alcoholism..
Proving alcoholism in divorce can be difficult. Unless you and your spouse reach an agreement outside of court, you will most likely have to file a motion for alcohol/drug testing or a motion to restrict parenting time due to your spouse’s alcoholism, which will likely result in a hearing. At the hearing, you are going to need to prove your spouse’s alcoholism through evidence that is considered admissible in court. You will need to have evidence of your spouse’s alcoholism. Some examples of such admissible evidence includes, but is not limited to, the following:
1. Police Reports, so long as the Police Officer is available to testify;
2. Certified copies of Arrests, and certified copies of Criminal Charges related to your spouse’s alcoholism, such as public intoxication or DUI;
3. Statements from law enforcement, probation officers, social workers, friends, family or any other individuals that have first-hand knowledge of your spouse’s alcoholism;
4. Bank and Credit Card Statements showing your spouse going to bars and purchasing alcohol on a regular and consistent basis;
5. Text messages and emails from your spouse while intoxicated;
6. Photos of property damage or injuries resulting from spouse’s intoxication; and
7. Your testimony about your spouse’s habits, behaviors, and extent of their drinking;
In my experience, when children are involved, the Court does not take allegations of alcoholism and dangers to children very lightly. If you have evidence to support the allegations you are making of your spouse’s alcoholism and there being a danger to the children, the court is more likely than not to immediately order alcohol/drug testing of both parents and to temporarily restrict the souse’s parenting time to protect the best interests of the children. Therefore, don’t be surprised when the Court orders you to also have to take an alcohol/drug test as this is very common.
When an alcohol/drug test comes back positive for alcohol or drugs other than prescription drugs, the court has several options on how to address the issue. Some of the more common actions courts will take are as follows:
1. No Overnight Parenting Time
2. Supervised Parenting Time Only
The court may restrict a parent’s parenting time by ordering them to be supervised at all times. The supervision may be by a paid professional, a trusted family member, or the other parent, depending on what lead to the supervision.
3. Require Completion of Treatment or Rehabilitation Program
If a parent is abusing alcohol, the court may require the alcoholic parent to attend and complete a treatment or rehabilitation program.
4. Regular and Random Alcohol Screenings
In some cases, courts will order random alcohol tests and screenings. The benefit of such tests is that they can be customized for the case.
5. Requirements to be Sober Before and During Parenting Time
The court is most likely going to order that both parents abstain from drinking or taking drugs for a period before and during their parenting time with the child(ren). To ensure this order is followed, courts sometimes use technology like Soberlink, which is a mobile breathalyzer that reports results and photographs the person blowing to ensure accuracy. This usually consists of two (2) to three (3) tests per day, which can be only on parenting time days or every day. Unfortunately, this technology is expensive and not everyone can afford it, so courts may need to look to other solutions.
6. Suspending Parenting Time
In rare and extreme circumstances, and usually only if the court makes a finding of domestic violence or serious endangerment to the child(ren), the court may suspend parenting time until the parent shows they are actively addressing their addiction.
Often, courts and parents will use a combination of the above-listed options to address a parent’s alcoholism. At my firm, we have handled many cases dealing with a spouses alcoholism. Some examples are included below:
In one of my cases, we represented a mother in a parentage case involving an alcoholic father that refused to accept that he had a drinking problem. Following allegations of alcoholism on both sides, I proposed that there be PETH testing which the Court ordered. Both parties were to each take a PETH test, which is a test designed to detect heavy drinking up to 2 to 4 weeks prior to the sample collection. Our client’s tests came back negative, but the father’s results showed that he was an extremely heavy drinker with the average number of drinks per day as high as 24 drinks. We filed a motion for him to have supervised parenting time after attempting to enter an agreement was not possible as he refused to admit that he had a drinking problem. After the filing of the Motion and the Court’s intervention, the father agreed to not have overnight parenting time and only has limited parenting time supervised by his mother on a temporary basis.
Something that parents who are about to try to prove alcoholism in divorce need to know prior to beginning their case is that this the Court system can be a long and slow-moving process. While it is still necessary to undertake, you need to have the expectation that this is not going to be a fast process and at times it is going to be difficult and frustrating. Depending on which judge you have, the court may bend over backwards to try and help “fix” the alcoholic parent that refuses help. However, sometimes time is on your side. This is specifically the case when you are safe and your children are safe from the alcoholic spouse.
Luckily, all cases must come to an end and the court has seen that he has not and will not do what is necessary to have additional, unsupervised, or overnight parenting time with the child. You need to make peace with the fact that the other parent may not be able or willing to change or seek help. You cannot make them get help if they don’t want it and you cannot make this your problem. Instead, focus on you and your child(ren) and what is in you and your children’s best interests.
In another case of mine, we were representing the wife in a divorce proceeding against her husband who was an alcoholic and a frequent drug user. The parties had two (2) minor children, both still in elementary school. In this case, the husband had an extensive criminal history involving drugs and alcohol. Due to the circumstances of the case, the husband agreed to the mother having joint decision-making for education, religion, and extracurricular activities parental responsibilities and sole decision-making for medical parental responsibilities after consulting the husband and a step-up parenting time plan. The step-up parenting time plan involved a mix of several of the above-listed options: no overnight parenting time, supervised parenting time only, and regular and random alcohol and drug screenings.
Step One: The husband had no overnight parenting time and he only have minimal parenting time supervised by the wife. This is the same parenting time that the husband had after the parties separated before the case began.
Step Two: For three (3) months following the husband’s his first negative PETH test, the husband still did not have overnight parenting time and his parenting time would still be supervised, but now by his mother instead of the wife. The PETH test had to consist of both a hair follicle and urine test, at a minimum.
Step Three: After the three (3) months of negative PETH tests in step two, the husband had unsupervised parenting time, but still no overnights for another three (3) months.
Step Four: Following the three (3) months of unsupervised parenting time, the husband would finally have unsupervised, overnight parenting time every other weekend from Friday to Sunday and overnights on alternating Wednesdays with the minor children.
If at any time the husband had a positive PETH test, his parenting time would revert to Step One and the step-up parenting plan would begin again. The wife could also request the husband take a PETH test at any time. The husband would have to get a PETH test within 24-hours of the wife’s request and if positive, the husband would have to pay for it. If the test was negative, the wife would have to pay for it.
Unfortunately, the alcoholic parent might at some point try to figure out a loop hole or try to get around this agreement. In this case, the husband told the wife that he had a negative test, but it turned out to only be a negative urine drug test that did not test for alcohol and typically does not measure more than a few days back. There was no hair follicle test and no test for alcohol, which was one of our major concerns throughout the case. We of course saw through this attempt and zealously advocated for her in Court that did not let him advance advancing to Step Two was improper and in violation of the agreement. When alcohol and drug testing is involved in a court order, it is critical that you have an Attorney that has the experience and knowledge to understand the results and ensures all Court Orders are followed.
In my opinion, the hardest thing is making the first call to an Attorney and talking about your options in regards to how to prove alcoholism in divorce. We understand that this can be overwhelming, but we pride ourselves on providing you with the knowledge and ease you need to make the best decision for your family and for yourself. If you are seeking to divorce your alcoholic spouse, we are happy to help you in any way we can.
Need More Information or Representation?
Do you need help during mediation or litigating your custody or divorce case? If you are looking to start or are going through a custody or divorce proceeding against an alcoholic partner or spouse, and need more information regarding litigating your case in court, giveThe Law Office of Tiffany M. Hughes a call today at 773-893-0228 for a complimentary 30-minute phone consultation. Our entire practice is solely dedicated to the area of family law. We are highly experienced and help parents litigate their matters against alcoholic partners and spouses to obtain the custody judgment that is in the best interests of their child(ren).
Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.
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