Illinois Lawyer Referrals and Legal Guidance

Archive for January, 2012

Don’t Delay Planning for College Costs—Even in Divorce

Tuesday, January 31st, 2012

A recent case decided by the Illinois Supreme Court is a cautionary tale as to why you should plan ahead for college expenses when you are going through a divorce. More frequently these days, couples are planning early for the massive undertaking of putting their kids through college. When a couple is divorcing, they should likewise plan for what’s to come, or risk not receiving support for these expenses.

In this case, a couple had “reserved” the issue of college expenses in their divorce judgment. College seemed a long way off at the time, and so they put off the specifics of who would pay what, until some later time. They did not even state that either would in fact be responsible for them—just that they reserved the issue until a later time.

This is not uncommon to do; after all, each party’s financial circumstances can change drastically from the time the children are young, until it’s time to send them off to college. The problem here, was that the mom waited until one of her three children was finished with college, and one was currently enrolled, before she petitioned the court to have the dad share in the college costs.

Ordinarily the parties to a divorce may go into court later on and ask for some part of their arrangement to be modified if there has been a change in circumstances. But the law does not allow the change to be made regarding past obligations. So if you’re asking the court for more money to pay for expenses for the children, if you’re successful, you may get an increase in support going forward, not backward.

This mom wanted the college costs she had already paid to be shared by the dad. She did not feel that she should be limited to only future costs, because she did not believe she was asking for a modification at all. She was not asking for something to be changed, just to have the amounts set, and they had already agreed to determine college expenses later.

But in fact, the court said that their reservation of the college issue just gave the court permission to consider it later, but did not obligate either of them to pay any college costs. Therefore, when the mom went to court later to ask for the dad to be obligated and pay, she was asking for a change in the circumstances, and so it could only be considered going forward.

So this mom was out the money she had already paid for her children’s tuition and room and board. Had she acted earlier, before the bills began, it may have been different.

But had she acted even earlier, at the time of the divorce itself, and made a specific provision for college costs being shared by both of them, there may have been a different result. In some cases, where there was agreement in the divorce that both would share in the responsibility for college expenses, then the later disagreement about amounts could be figured out. Instead this mom and dad just agreed to agree in the future, so no one was really on the hook for it.

Paying for college long after a divorce can definitely be a confusing issue to resolve. But one thing is clear. College tuition is extremely expensive. So it pays to be sure that if you are going through a divorce, you look all the way down that road, even if your children are very young at the time, and properly consider your options.

1/31/12

Tags: college cost, divorce, future expenses, reserved, tuition
Posted in Illinois Family Law | Comments Off

Joint Custody Arrangements in Illinois

Monday, January 30th, 2012

One option for parents that are going through a divorce, is to choose a joint custody arrangement. While the name may sound like it would be an equal split of the time spent with the children, in fact, Illinois joint custody does not related to actual physical custody at all.

In Illinois, joint custody is really an arrangement to jointly parent the children. It means that both parents share equally the rights and responsibilities for the children’s education, health care, and religious training. Regardless of the physical custody arrangement, each parent has a say over what happens with the children in these major areas of their lives.

In theory this may sound simple, but in practice it can get complicated. Two people who likely may not agree on much in their own personal lives need to be able to make joint decisions about significant areas of their children’s personal lives. For this reason, there are some tight controls on joint parenting in Illinois.

First, joint custody has to be approved by the court, and will only be granted if it can be shown that the parents will be able to cooperate with each other in the parenting decisions. A high level of cooperation is needed by the couple to be able to have success at joint custody. The judge will look at how likely the parents are to comply with the parenting agreement, other factors that show the ability and willingness to work together towards these important decisions.

Second, joint custody arrangements are controlled by either a joint parenting agreement that the couple comes up with, or a joint parenting order by the court. These joint parenting documents set out the specific parameters of each parent’s rights and responsibilities for the care and decisions of the children. Just to say that the parents share jointly in their parenting duties is not enough. Each family situation is unique, and so each joint parenting agreement or order should specify the areas of care and decision that will be decided together, and what each parent’s rights and duties are.

Third, the joint parenting agreement or order also needs to specify what the process will be when there is a disagreement in concerning the plan. Since the plan will govern the relationship for many years, it is likely there could be issues that arise. So each joint parenting plan should set out what happens when there are changes needed, disagreements, or the plan is not followed.

The issues that are involved in joint parenting can be challenging decisions to make even among married parents. If attempting to make these decisions by jointly parenting with an ex spouse, it is important that it be a cooperative situation, and that a very solid agreement is put in place.

1/30/12

Posted in Illinois Family Law | Comments Off

“The Gloves are Off”—Physical Threat, or Social Metaphor?

Friday, January 27th, 2012

Using threatening or violent language at work, is never advisable. But recently a federal appeals court seemed to suggest that workers could be given some leeway with their speech in certain circumstances. Even comments that could seem to threaten violence to a boss, might be viewed in context as not amounting to an actual, physical threat.

In this case, electricians on a work site were given two, 15-minute break periods each day in an area away from the dangers of the work. Due to the circumstances of the job itself, the breaks became longer than the period allowed, and management stepped in and issued warnings. Two of the workers objected and told the supervisor that if they were laid off things could “get ugly.” And one of them further said that the supervisor should bring his “boxing gloves.”

The two were fired, but were later reinstated, because the National Labor Relations Board (NLRB) held that they were not really issuing physical threats of violence. Instead, their comments were figures of speech and not to be taken literally given the context and circumstances. This decision was supported by the federal appeals court.

It is no doubt a tough balance to maintain. Workers need some leeway to be able to make an impulsive comment in the heat of the moment, and some of this speech is protected. On the other hand, businesses do not want to take a threat lightly and be sorry later they did not act on it to protect workplace safety and order.

The decision to reinstate the workers relied on the context of the comments. While they said that the reference to “boxing gloves” indicated that it was a metaphor, and not an actual threat, they did caution that the same words in a different context could have a different result. In fact, many of these types of expressions could be viewed either way in light of where and how they were said.

In this case, the fact that the comments were brief and spontaneous, and came on the heels of hearing news that made them fear for their job safety, went a long way to showing they were not intended as physical threats. Instead, the comments were viewed as vocal resistance to a policy that these workers thought was unfair, unsafe, and could cost them their jobs.

Again, this is not to say that using words that convey violence or threats is the way to go when you are upset at work. But at least for these workers and possibly others, if it happens, your words alone might not necessarily be the sole factor in determining your intentions.

1/27/12

Posted in Did You Know? | Comments Off

Dealing with the IL Dead Man’s Act

Thursday, January 26th, 2012

A law in Illinois with a very ominous name—the Dead Man’s Act—is very much alive in courtrooms throughout the state. It comes into play where one of the parties to a lawsuit is deceased, and the other wants to testify about conversations or events that happened with the deceased. It is intended to prevent adverse parties in a lawsuit from making things up that the person, if he or she was alive, could dispute but cannot since he or she is dead.

Though it is supposed to level the playing field for the person who is not there to tell his or her side of the story, it can often actually put the other party at a disadvantage. In a car accident case, for example, where there was no other witness besides you and a person who is now deceased, you could be barred from testifying about many aspects of the event that would otherwise be typical evidence to help prove your case.

If the decedent admitted something to you right afterwards that would impact your case, you cannot generally testify to that. Also, you generally cannot testify about your observations about the events just before, during, and after the crash. If you saw the other driver swerve, or brake too late, or go through a red light, you may be barred by the Dead Man’s Act from bringing that to the trial.

Recently, an Illinois car accident case addressed this exact issue. The plaintiff was not allowed to testify to facts about the speed of the decedent’s car, how he controlled his car, whether he provided any warnings or proper lookout for other cars, and what the traffic light indicated immediately before and during the accident.

There was one small opening, though, that this plaintiff and others are often able to move through. He could testify about conditions that the decedent could not have observed for himself. Basically, this means that if some fact happened in the presence of the decedent, and he or she could have disputed what you are saying, then you likely cannot testify about it. But if it is clear that the decedent could not have rebutted what you are saying because he or she would not have been able to observe it, then you may be able to use that fact in your case.

For example, a plaintiff could testify about his knowledge and observations of the intersection generally, and how the traffic signal operates. He might also be allowed to testify about his own actions driving his car, that did not happen in the decedent’s presence; such as the mechanical condition of his car, whether he heard anything before or what he could have seen, and if his foot was on the brake pedal.

These issues can seem like hair-splitting, and they often are. The Dead Man’s Act is a well-intentioned law to protect the rights of those who cannot speak for themselves. But, unfortunately, it can silence those who might otherwise have something important to say to the court that they may need to help them in their case.

1/26/12

Posted in Injury Cases | Comments Off

5 Tips for Taking Your Child out of Illinois in a Custody Situation

Wednesday, January 25th, 2012

Whether you have shared custody or sole custody of your child, one parent generally cannot make the decision alone to move out of the state of Illinois with the child. Here are some factors to consider, if you are wanting to make a move.

1. A petition should be filed with the court asking permission.

If the child has been living in Illinois, generally that is where the petition would be filed. You would be asking the judge to grant you the right to remove your child from the state. If the other parent objects, you would have the responsibility to prove your case as to why the change is right. This could take time, because both sides need adequate time to prepare and present their arguments. So it is not a decision that can be made at the last minute before you want to be settled somewhere else.

2. The judge will base the decision on what is in the best interests of your child, taking many factors into account.

Regardless of how badly you may feel that you need a change, or another state is more desirable, if it is not overall in the best interest of your child, you may not be able to move out of the state. The judge will look at the specifics of your situation and the proposed move, in light of factors such as: whether the move will enhance the quality of life for you and your child, and in what way; whether your move is based on bad motives, rather than a positive plan; whether the objection to the move is based on bad motives; what the effect will be on the other parent’s visitation, and if it is possible for an appropriate visitation schedule.

3. A solid plan for a good, enhanced quality of life will go a long way to justifying the move.

The judge will look at many aspects of the new life you are proposing in the new state. You can show specifics about the community, school system, other family nearby and other support system, and the positive effect it will have on your life that your child will also benefit from.

4. Problems can arise if paternity has not been established.

If the parents have not been married, and paternity has not been established, it is difficult for the father to prevent the move. But that does not necessarily mean that the mother is free and clear to move with the child. The father could take the steps to establish paternity if he knows you may be planning to move, and could then hold it up. Also, if you move first, and then paternity is established, you may have to return to Illinois to present your case to the judge.

5. A short vacation out-of-state is generally not so complicated.

In most situations, there does not need to be a complicated procedure just to take a reasonable vacation outside of Illinois. Usually, with notification to the other parent as to where and when you will be going, along with contact information for the child, there isn’t a problem.

1/25/12

Posted in Five Tips | Comments Off

Alimony Agreements can be Unchangeable—Even if Your Finances Change

Tuesday, January 24th, 2012

When a couple is divorcing, it can be an advantage for them to reach an agreement about money, property, and other issues between them. They can sign a Marital Settlement Agreement which spells out the resolution of these issues. Rather than fighting in court about these matters, the judge will look at the terms of the agreement, and decide if they are fair. If the judge approves, then the agreement takes effect.

But before you agree, be sure you know what you are getting into. Some Marital Settlement Agreements can have effects lasting far into the future. What may seem to make sense under your current financial and lifestyle circumstances, may feel quite different a decade later. If you want the terms to have some flexibility to change with your changed situation, then do not lock yourself in to an agreement that cannot modified.

In a recent case decided in an Illinois family court, a husband was likely wishing he knew then what he knows now. He and his former wife signed a Marital Settlement Agreement, where he promised to pay her a fixed amount every month for maintenance (alimony), and other payments, unless or until either of their deaths or the wife remarries or cohabitates. The Agreement said that the payments could not be modified even by a judge, unless both of them agreed to the change.

The problem was, though, that 10 years later the husband’s financial situation was not at all what it had been when he was signing that agreement. He claimed that to continue the same payments would mean that he had to liquidate his assets, and would be unable to support himself. The husband tried to argue to the judge that the agreement was unfair and should be modified.

Unfortunately for the husband, once he signed the Marital Settlement Agreement which said a judge could not modify the maintenance terms, he was stuck with them. The fairness determination was made at the time the agreement was entered in the divorce, and the fact that it might be unfair under his current conditions could not be considered.

He locked himself into paying a fixed amount of money each month, rather than a percentage of whatever his current income would be. And he locked himself into the amount being virtually unchangeable.

Sometimes locking in the terms for maintenance could be an advantage. If his finances had changed for the better, he would not be required to pay more. The uncertainty of being brought into court to reopen the payment amounts is erased. But the downside is that where circumstances make the old arrangement an impossible fit for the present financial situation, you could be stuck.

1/24/12

Posted in Illinois Family Law | Comments Off

Injuries on Public Property in Illinois

Monday, January 23rd, 2012

When an accident happens, if someone else is at fault, they generally have responsibility for paying money damages if a lawsuit is brought against them. But if an accident happens on public property, then your chances of winning a case are drastically reduced.

This was the conversation I had recently when I was contacted by a man who suffered serious injuries from falling on a wet floor at the Allstate Arena. This venue is owned by the Village of Rosemont, which is a public entity. Though the fall and the injuries are the same regardless of whether the accident was on public or private property, the location greatly affects what kind of case you have to prove.

Ordinary lawsuits for injuries require plaintiffs to prove that there was negligence by the defendant. This means that there was some duty owed to you that was breached, and you were hurt because of the breach of duty. But public entities and public employees have a special immunity which protects them from most ordinary lawsuits for negligence.

In a lawsuit against a public employee or public entity, you would have to prove that the defendant’s conduct was “willful and wanton.” The standard of willful and wanton is a high level of proof, that goes far beyond just a failure to do something should have been done. You have to prove that the defendant’s actions were deliberate, and done with an intent to cause harm, or else that the actions showed a complete disregard for safety.

When you apply these requirements of proof to the facts of a case, here is how it looks: If, for example, a child is on a swing at a neighbor’s house, and the swing set fell over and injured the child, it would be relatively straightforward to show the neighbor’s negligence and win a case for money damages. The neighbor had a duty to maintain a safe swing set before any children played on it. If it was not properly secured and fell, then there could be negligence and responsibility for the injury.

But if the same accident happened on the public school playground, the case would proceed quite differently. Instead there would have to be proof that the school district showed a purposeful lack of regard for the children’s safety. Did they receive prior complaints about the unsafe condition of the swing set, and yet did not do anything to fix it? Did they have actual knowledge that it was not properly secured in the ground, but did not do anything to fix it? Did they remove some safety feature that had been in place?

These are the questions that have to be explored to have a case when the accident happens on public property and not private property. The same slip and fall accident that happened at the Allstate Arena, could be a major case if it happened, for example, at a grocery store. Though the water could have gotten on the floor and been left there under the exact same facts, the difference in the case is the difference in the venue. Public employees and public entities are given more leeway in lawsuits than are private individuals. Same fall; same cause; same injuries—different case completely.

1/23/12