Illinois Lawyer Referrals and Legal Guidance

Archive for September, 2011

When Your Neighbor’s Noise is a Nuisance

Wednesday, September 21st, 2011

Not everyone can always love thy neighbor all the time, but it takes it to a whole new level when your neighbor’s activities seriously interfere with your own peace at home. Here are some things to look at to see if your neighbor’s activities are more than just annoying.

1. Is the activity the kind that interferes with the use and enjoyment of your own property? Some examples are fumes, foul odors, and excessive noise. The interference should be something so offensive, that it makes your life uncomfortable, not just undesirable.

2. Have you tried talking to your neighbor about it? Sometimes less is more, before a situation escalates. Perhaps he or she didn’t realize that what was going on at their house could be heard, felt, or smelt by your household. Also, local ordinances can address some of the issues, and your town’s officials may be able to intervene to help the situation.

3. How substantial and offensive is the activity? If a lawsuit is necessary to stop your neighbor’s activity, the court will want to see that it is more than just occasional or bothersome. If you are particularly sensitive to a noise or smell, for example, you probably won’t be able to stop the activity. But, if there is loud barking around the clock, day and night, and any reasonable person would find that it interfered with their home-life, you may be able to stop it.

4. Is the activity at your neighbor’s house unreasonable? Before stopping someone from doing something on their property, the court will balance the rights of each of you, and decide whether it is appropriate to stop or change what your neighbor is doing. Could their business or personal interests be seriously harmed? On the other hand, what would happen to you and your home if it continued?

5. Can some measure of compromise help? An intermediate step could be taken, to try to alter what they are doing, rather than stop it completely. In the example of barking dogs in a home kennel, rather than closing it completely, the number of dogs could be reduced, or the amount and times they are outside could be changed.

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What is business litigation?

Tuesday, September 20th, 2011

Business litigation, or commercial litigation, is a broad area covering many types of disputes that can come up in owning and running a business. These disputes can be within the company, between two companies, or between a company and a customer or client.

Often, a commercial litigation attorney will first try to avoid litigation. They might open up discussions with the other side, send letters, and generally try to work things out. This is the easiest solution because going to court takes considerable time and money. Sometimes, however, further steps are necessary.

When you take someone to court, you can ask the judge for different types of relief or solutions. You can ask for money that is owed to you or money for damages someone caused. You can ask for the court to order the other side to do something or to stop doing something, such as using the same name as your business. Either way, the first step is to file a complaint, which is the document that officially starts a case.

The other side then has a certain amount of time to file a response, in which they admit or deny what was in the complaint. This is called an answer, and it basically contains the defendant’s side of the story. In the answer, the defendant might defend their actions. They might explain that they had a good reason for not paying on an invoice because they received a defective shipment, for example. If the defendant doesn’t respond by the deadline, they could automatically lose the case.

After the complaint and answer are filed, both sides dig deeper to try and judge the strength of their case. This phase is called discovery and it’s similar to an investigation. There are rules each side must follow, such as responding to all reasonable requests for information (documents, answers to questions, etc.)

Most cases settle at some point after discovery and before trial. Litigation attorneys charge one of two ways: hourly or contingency. An hourly fee is pretty straightforward. There is a set amount per hour of work performed by the attorney. If your attorney is charging hourly, be sure to request frequent, itemized bills so nothing comes as a surprise. A contingency fee is where the client pays nothing upfront but shares what they recover with the attorney. Generally, the attorney’s cut is 1/3. A contingency fee only makes sense in cases where you are suing for monetary compensation. If you are defending a lawsuit, you will be charged an hourly fee.

In Illinois, certain businesses cannot act as their own lawyer. We generally recommend hiring an attorney anyway, because your chance of success is greater if you have an experienced litigator looking out for your best interests.

Tags: Chicago commercial litigation attorney, Cook County commercial litigation attorney
Posted in Did You Know? | Comments Off

Most Income Counts For Illinois Child Support Obligations

Monday, September 19th, 2011

Among the many issues to be decided in a divorce case, is the amount of money that each parent will contribute to support their children going into the future. Each parent could be ordered to pay child support, depending on what their “net income” is.

In Illinois, the law has looked broadly at what sources of money will be considered net income for determining what a parent’s child support contributions should be. It may be logical to think that if money is considered to be income, it would have to come in from some outside source—even if it is interest income from funds you already own. But Illinois cases have looked to other sources of funds, also and treated them as net income, even where it may not feel like income to you.

In one recent example, the father’s assets awarded to him from the divorce settlement were considered net income. He was unemployed, and basically had no money coming in from outside sources. But his divorce assets were in an account, which he used for his living expenses. Each month he withdrew a certain amount from the account. These monthly withdrawals were considered net income, and the father was ordered to pay a percentage of that money in child support.

The father argued to the court that the money could not be income, because he was just spending money that was already his—there was no net gain involved. But Illinois law looks to all sources of income for child support payments, and where a parent regularly living off of his assets, that money is considered income. After all, if he can clear enough money each month for his own living expenses, then that sounds like income, even if the source is not in the form of a paycheck from an employer.

So whether or not it feels like a financial surplus in the typical sense, all forms of income to either parent could be in play when it comes to supporting the children and providing for their many needs.

Tags: Evanston child support lawyer, Wheaton child support lawyer
Posted in Illinois Family Law | Comments Off

A Father’s Right to Determine Paternity

Friday, September 16th, 2011

Under Illinois law, if a man believes he could be the biological father of a child, then he has a right to be able to establish his paternity. He can pursue this right, even where there may be another man who is already legally presumed to be the father.

There is a strong public policy in Illinois family law, that every child has the right to have the involvement of both parents in his or her life, regardless of the status of the parents’ relationship with each other. A man who wants to establish the paternity of a child can file a petition with the court to have that matter decided. If needed, the court will order a DNA test to help prove the relationship.

In some of these situations, there may be another man who is already legally presumed to be the child’s father. This may be based on the mother’s marriage to the other man, or on the man’s agreeing to legally assume that role. But regardless, neither of these situations should affect a potential biological father’s right to have his actual paternity determined.

In one recent Illinois case, a possible biological father filed a petition to establish paternity, and a DNA test was ordered for the mother and child. The mother refused, claiming that another man had signed a legal assumption of paternity, so therefore the court did not have any right to hear the matter.

The court pointed out that mother’s argument missed the point. When the other man legally assumed the paternity of the child, this was binding on him. He was not able to go back on his legal role as father, unless there were some extraordinary circumstances involved. The law certainly does not want someone taking on the status of father in a child’s life, and then being able to back out later.

But the presumed paternity status of the other man did not affect the right of the one who believed he was actually the biological father, to have that fact legally determined. The facts showed he had the potential to be the father, and his potential for fatherhood could not be thwarted by another man’s status. If that was allowed, then biological fathers could always be cut out of their child’s life by another, unrelated man voluntarily assuming parental rights.

The court in this case said that the mother’s refusal to have the DNA test was improper. She was required to follow the judge’s original order for the testing. A child’s right to have his biological parents as part of his life is safeguarded by our laws.

Tags: Elgin family attorney, Palatine family lawyer
Posted in Illinois Family Law | Comments Off

Illinois Child Custody: You Can’t Sue A Child’s Representative

Thursday, September 15th, 2011

When a couple is going through a custody battle in Illinois, their children need to have their rights protected. The parents–no matter how well-intentioned—are viewed as representing their own interests. So someone who is more neutral gets involved in the case to help the judge make decisions about the children’s future. But a recent court decision confirmed that in Illinois, you won’t have much luck if you try to sue a child’s representative for not handling the case properly.

A child’s representative in custody is appointed by the judge to make legal arguments based on the evidence in the case, to help decide what is in the best interests of the minor children. The issues involved can be almost anything related to the children– such as custody, visitation, or their overall well-being. The representative does this job at the direction of the court, in a similar way to a court-appointed psychiatrist or other experts.

Even though they are called “representatives,” they are not really representing anyone in particular. They talk to the child about what the child’s wishes are, but they don’t have to rely on that in their arguments to the court concerning the child’s best interest. The representative is more of a neutral player.

Because of the role that representatives play in family law cases, Illinois law has decided that they should have absolute immunity from being sued for doing their job. This means that parents or others who might disagree with what the representative has to say, are not going to be able to successfully bring a lawsuit about it.

Protecting a child’s representative from being dragged into a lawsuit about the custody case would seem to help the job get done in a more independent way. The representative can carry out the duties without fear of being intimidated or harassed by parents who don’t like the results. After all, if the couple was likely to agree on what was in their children’s best interest, there probably would not be a need for the representative in the first place.

So the representative is doing a job where he or she is supposed to be a neutral legal expert of sorts, but at the outset knows that someone will probably not like the results. Illinois law says it doesn’t want that reality to interfere with the important job at hand.

Those who disagree with the representative not being accountable with a lawsuit, would say that giving immunity does not help to protect the interests of children. That, in fact, representatives can actually cause harm to the children in their duties; so it does not help to shield them from parents wanting to hold them accountable by a lawsuit.

For now, though, Illinois law has decided that these child’s representatives deserve to be protected from unhappy parents in order to do their jobs properly. So while there is a lot we can do to help families in custody and other family law cases, we cannot do the impossible, which is to sue a child’s representative in court.

Tags: Lake County child custody attorney, Wheaton child custody lawyer
Posted in Illinois Family Law | Comments Off

Same-Sex Couple Denied Their Civil Rights

Thursday, September 15th, 2011

A same-sex couple wanting to celebrate their civil union, was denied the right to do so. And not by just one facility—they were turned away by two separate banquet facilities. But the state of Illinois is in their corner, helping to uphold their civil rights.

Civil unions are now the law of the land in Illinois. Couples, whether they are same-sex or not, may enter into this relationship, which gives them all of the rights and obligations in the state that a married couple has. This includes hospital visitation rights, inheritance rights, and others.

Two men looking to make this commitment to each other, wanted to celebrate their civil union in ceremony at a banquet facility, but ran into roadblocks along the way. Twice they were turned away, when trying to secure a location. They were undeterred, though, and celebrated their civil union in a backyard ceremony.

But their fight to have their civil rights recognized continues. They filed a complaint with the Illinois Department of Human Rights, which enforces Illinois’ anti-discrimination laws. It is illegal in Illinois to discriminate against anyone at a facility like a banquet hall, which is open to the public. Discrimination because of someone’s sexual orientation is one of the categories that is covered under the civil rights laws and that the Department investigates.

Even before the passage of civil unions in Illinois, it would have been illegal to refuse to book a party because of the sexual orientation of the participants. Now that civil unions are a reality, there is the potential for this type of discrimination to increase, as more same-sex couples are looking to celebrate their unions with family and friends.

But the Illinois Department of Human Rights found in this case “substantial evidence” that the couple was discriminated against in refusing to host their union ceremonies. This helps the couple to move forward in their quest for the equality that they and others like them deserve. They knew that they had been treated wrongly by these banquet facilities, but now with the decision by the Department, they know that they are supported by the state and the denial of civil rights should not be taken lightly.

Posted in Litigation | Comments Off

What You Cannot Do With Your Cell Phone While Driving

Wednesday, September 14th, 2011

It seems these days that there is practically no end to what you can do on a cell phone. But there are limitations on what you can do on Illinois roadways with your cell phone while driving.

1. It is illegal to use a cell phone or other electronic device to write, send, or read an electronic message while driving. This would include e-mails, texts, instant messages, internet searches, and other similar operations. Some exceptions apply to this ban. You could use a voice-activated or other hands-free method of composing or reading your messages. Also, it is allowed to use your phone to send an electronic message if you are reporting an emergency situation.

2. When driving in school speed zones or a highway construction and maintenance speed zones, you cannot be on your cell phone other than for emergencies.

3. New drivers are further restricted. Anyone under the age of 19 is banned from all cell phone use, other than for emergencies. This would include hands-free cell phone use also.

4. You cannot wear a headset receiver while driving, other than a single ear piece or one-sided headset.

5. Some local laws in Illinois have even greater restrictions on cell phone use. For example, in Chicago, and now in Highland Park as well, you are not allowed to use a cell phone handset while driving. Only hands-free cell phone use is allowed.