Illinois Lawyer Referrals and Legal Guidance

Archive for April, 2010

Sole custody in Illinois

Friday, April 30th, 2010

The only thing more emotional than a bad breakup is a bad breakup when a child is involved. Whether it’s because they truly think that their ex is a bad parent or because they just are angry/sad/both we get lots of calls from people who want sole custody. By sole custody we mean that they don’t want their ex to ever see the child again.

For most people this is not a realistic goal. You can cheat on your spouse more than Tiger Woods and still have rights to be with your child. Sole custody is usually only given in rare circumstances such as:

-One parent has simply disappeared and hasn’t seen the child in months or years.

-One parent is seen as dangerous for the child. That would be the convicted child molester or gang-banger who is leaving guns around the house.

Even in those situations, if the bad parent at some point wants to establish a relationship, even if it’s supervised visitation for one hour a week, they usually will be able to achieve that.

However, sole custody, legally speaking, has to do more with the right to make parenting decisions. So if you have it you get to decide on religion, education, activities, doctors appointments, etc. When you have joint custody, even if one parent only sees the child once a week, those decisions are supposed to be made together.

If you think that your ex should never be able to see your child again you need to make the case as to why. By “why” it should focus solely on them and the child (e.g. my ex drives drunk with my child in the car), not at all about how your ex treats you. Like any legal case, winning or losing is about painting the best picture to the Judge about your situation. This is done by providing specific examples. Remember, the Judge doesn’t know anyone who is involved in the case. It is up to you (via your lawyer) to make them realize what the real situation is.

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Tags: child custody
Posted in Illinois Family Law | Comments Off

You can’t move your Illinois criminal case to a county closer to your home

Thursday, April 29th, 2010

Legal questions to our office seem to come in waves. In recent weeks we’ve received about five calls that asked something like this:

I was visiting a friend down state at school and I got arrested for having an open container of alcohol in the street. The court appearance is mandatory and it is three hours from my home in Chicago. I can’t take off work to go there or I will lose my job. I would like your help in getting the charges transferred to Cook County.

Unfortunately you can’t transfer a criminal or traffic case because it would be more convenient for you. If you are going to a place far away from where you live it is just a risk you take of traveling. I’m heading to Las Vegas soon for a weekend get-away and if I somehow get arrested I would have to head back there for court.

The reason you can’t switch it is because the relevant evidence is in the county where the alleged crime took place. Namely they aren’t going to pay a cop from Taylorville to drive to Skokie and testify that you did something wrong. It would cost them way too much money and deplete whatever resources they have. On top of that, the Judges up here are so busy with their cases that they can’t take on cases from another county.

If you have to go to court you have two options: 1. Show up. 2. Hire a local attorney to show up for you. Every downstate county is different, but if you get a local, well connected attorney you can usually get the charges handled without appearing as long as they are not too serious (e.g. jail time is a possibility).

The worst thing you can do is blow off court because it will lead to a warrant for your arrest and a host of other problems. We know that finding an attorney in some of the smaller downstate counties can be a big challenge. In one county in fact there are only three lawyers and two of them work for the Government.

Some day they will create a system that allows people to attend court over the internet via a webcam, but until that day comes . . .

Posted in Criminal Defense in Illinois | Comments Off

Illinois attorney advice on family law issues that just don’t matter

Wednesday, April 28th, 2010

Every Wednesday we provide five legal tips based on questions we have received from readers. This week focuses on things that happen in divorce, custody, child support, etc. that concerns people but in reality (aka a courtroom) don’t really matter.

1. My spouse/partner/ex cheated on me!!! This is emotionally awful, but unless it threatens the safety of the kids it is for the most part legally irrelevant. The one exception would be if the cheater is spending a lot of marital money on their affair. Beyond that, as morally wrong as cheating is, it’s not illegal. If it was half the population would be in jail.

2. My ex is letting his new girlfriend babysit the kids!!! This drives people nuts, but again unless the safety of the kids comes in to play, it’s not legally a big deal.

3. We entered into a verbal agreement about custody and now my ex isn’t following it!!! Verbal agreements can not be legally enforced. If you enter in to a verbal agreement get it entered in to the courts to make it official.

4. My husband has two kids that he pay child support on from a previous marriage. There isn’t any money left for my kids!!! While we get that would be frustrating, there is nothing that can be done about it. The first order takes precedent.

5. By the time I pay my ex for child support I barely have enough left to pay rent!!! Again, it’s unfair, but Illinois child support laws aren’t written to take that in to consideration.

Tags: affairs, custody
Posted in Five Tips, Illinois Family Law | Comments Off

Form 95, the one time you should ask for millions when suing

Tuesday, April 27th, 2010

I’m sure you’ve read a splashy headline that says something like “Family suing for $100 million over accident.” It sounds great, but the reality is that it means nothing as the value of a case is determined based on things like pain and suffering, lost wages, comparative fault, etc. Talking tough about how much you are suing for usually does one thing – piss off someone who is reading the article. Saying you are suing for millions is just dumb, with one exception.

When suing the Federal Government under the Federal Tort Claims Act, you have to file what is called a Form 95. Basically the law is that before you can sue the Feds you have to fill out this form and give them six months to admit or deny liability and agree or disagree with what you want. The catch is that you are limited to whatever amount you put on the form.

Case in point, the other day we were contacted by a man who wants to sue a VA hospital for improperly diagnosing a leg injury which led to an amputation of his lower leg. He’s not the “suing type” so he tried to handle this on his own and thought he would have a better chance to settle if he proposed what he thought was a reasonable dollar value for the loss of his leg.

The man asked the Government for $500,000. That is no small sum, but if they were negligent and it caused him to lose his leg, an economist would certainly say that the case is worth a lot more money than that. The Government doesn’t have to settle with him and if they don’t he will have to sue. The problem is that no Judge could award him more than $500,000 because of what he wrote on the Form 95.

Lawyers typically fill out these forms for clients and when they do they will ask for a number that greatly exceed what they think the case might be worth. It’s a silly procedural rule that requires a silly response, namely asking for many millions of dollars. In one case, a family that did it by themselves asked for only $20,000 because they misunderstood what they were supposed to be writing. Once that form is signed and submitted, that’s that.

So while hopefully you don’t have to sue the VA or any other Government office for negligence, if you do you need to ask for the moon.

Tags: FTCA
Posted in Injury Cases | Comments Off

The solution to tax problems

Monday, April 26th, 2010

When I was younger I waited tables (the Bennigan’s birthday song is still ingrained in my head). That was when I was first exposed to the beauty of cash jobs. At our training orientation, the general manager made clear that we don’t have to pay taxes on all of our tips, just a small percentage of them. They encouraged this as an “employee benefit” and of course so their own payroll taxes wouldn’t go up.

As I’ve gotten older I’ve learned that the only thing harder than finding Osama Bin Laden is to get an O’Hare skycap to admit what they make in tips. Rumor has it that most make in the six figures and I believe it because it’s pretty common knowledge that if you don’t provide a tip your bag isn’t making it on to the plane. I’ve also scene friends that pay their nannies cash which of course results in no taxes.

Now this isn’t a political blog by any means. That said, I get a lot of calls from people with tax penalties that just can’t afford what they owe the IRS or the state of Illinois. I’ve seen proposals from some politicians that want to decrease the tax amounts to 10% on your first $50,000.00 and then 20% on everything after that. There would be no tax breaks or deductions of any kind. Aside from the fact that it would further bankrupt our Government if that happened, most people would love for that to happen. Right now you probably work three days a week for yourself and two days a week for Uncle Sam.

Based on what we know about under the table payments, the only way a tax plan like this would work would be if everyone actually paid taxes and the penalty for not doing so was enough to encourage people from breaking the law. If you were working a cash job would the threat of having to pay double taxes be enough to make you do the right thing? How about jail time? Loss of your driver’s license? No passport?

Is this completely unrealistic? I’m afraid that it is because every day I talk to people that know someone who is working a cash job (usually a child support matter) and if you’ve never paid any taxes it would be hard to get you to start now. With all the anger (real or manufactured) toward the health care bill and other government spending, what it really comes down to is money. Yet there is no anger toward people that are causing everyone else to have to pay so much. The $30,000.00 a year nanny is avoiding thousands. The $150,000 a year sky cap is avoiding tens of thousands. Hopefully an economist or someone else who is way smarter than me will figure out what is being lost and how this loss could actually allow us to pay less in taxes.

Tags: tax law
Posted in Did You Know? | Comments Off

Illinois child custody before a baby is born.

Friday, April 23rd, 2010

When people call us we try to take the emotion out of a situation and focus on the facts. That really allows us to give the best advice and hopefully help people. We never tell callers what they want to hear, but we always tell the truth.

When it comes to emotional issues, there is probably nothing more divisive that differing opinions on abortion. You will never convince someone who is “Pro-life” that abortions should be allowed and you will never convince someone that is “pro-choice” that they should be banned.

What we as attorneys think the law should or shouldn’t be is irrelevant. We deal with what is. It’s up to the legislators to keep or change the law. In the last six months we’ve had around ten calls from expectant fathers who learned that their now ex-girlfriends were going to terminate a pregnancy. Half of them said that they would gladly take care of the child once born and would agree to the mom giving up any legal responsibilities.

All that said, under the current law you can’t make someone stay pregnant who doesn’t want to be. As a father you have no legal rights to make someone stay pregnant even if you are offering the world if they do so.

On the other hand, if the mother is doing something that might potentially harm a child in the womb (drinking, smoking, drug use, etc.) you can call the police and seek out a civil court order that prevents her from doing so. You can also petition the court to be at the hospital when the baby is born. You might not be allowed in the room, but you might get to be with the child soon after the birth.

These aren’t easy situations for anyone and most issues related to custody happen after a child is born. And as I was typing this a question came in from a caller coincidentally on this topic. He wanted to know if his ex could make him pay for the abortion and while it’s arguable that if she went to court he’d have to pay for half, I’d never suggest you do it voluntarily if you don’t want that to happen and I don’t believe that they could get a court order for that before a baby is actually born which would make the point moot.

Tags: abortion, child custody
Posted in Illinois Family Law | Comments Off

Who can sue for a wrongful death case in Illinois?

Thursday, April 22nd, 2010

A reader writes:

My Dad died due to neglect. I was told by a local attorney I could not file a complaint because he was married. Why can’t I do something?

In general, no matter your relationship with someone who was killed by negligence there is a pecking order as to who can bring a lawsuit. If you are married it starts with your spouse and then if there is no spouse your kids can do it. If you are a child and die it is your parents that have first crack and then if no parents are around your siblings can pursue it. Name the relationship and there is a rule that applies. So what does our reader do?

Well if the wife doesn’t pursue it, then the daughter certainly can. She would open up a probate estate and asked to be appointed as administrator. Based on it being in the best interests of the estate a case would likely be allowed to proceed.

If both of them wanted to pursue it then the attorney the wife chooses would likely be allowed to handle the case even if the daughter picked a better firm.

If there is a settlement there is no set formula as to who gets what and the answer could turn on whether or not the lawsuit is filed under the wrongful death statute or medical malpractice statute. Usually it gets divided up in to different amounts based on random factors, but the person who has the right to bring the case will almost always get more if not everything.

We normally try to write in plain English, but reading this back has confused even us. So if you have any questions about this or any other issue please just contact us.

Tags: who can sue
Posted in Injury Cases | Comments Off

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