January 10, 2014

DOMESTIC VIOLENCE AND ORDERS OF PROTECTION IN ILLINOIS

Violence directed at a family member, domestic partner or boyfriend/girlfriend is very common. The news features murder/suicides, beatings and stalking accounts all too frequently. This is a serious problem in our society.

Domestic violence is an equal opportunity crime. A woman in a recent case shot and killed the pregnant girlfriend of her former lover. Another woman in an affluent Chicago suburb broke into her ex-husband's home and attacked him and his new wife. Luckily, the survived the attack.

Recently, a brave police officer in Arlington Heights answered a domestic relations call. A former boyfriend had stalked his ex-girlfriend. She obtained an Order of Protection against him which prohibited him from having any contact with her or her family. He ignored the Court Order and continued his criminal behavior. He was out on bond for violating the Order of Protection when he followed the woman to her mother's home.

The man held the former girlfriend hostage which led to a stand-off with police. The woman's mother escaped unharmed. The man shot the police officer in the face and in turn was shot dead by the SWAT Team which was at the scene.

This is just one tragic incident which illustrates the sad truth that an Order of Protection is merely a piece of paper. Waving it in front of the offender is not going to stop a bullet.

Anyone who is the victim of such a violent bully must obtain an Order of Protection by completing a Petition for an Emergency Order of Protection. These forms are available online for most Illinois counties and/or are available at the local courthouse. Many counties have on site domestic violence counselors and/or attorneys who will assist you to complete the paperwork and direct you to the proper judge. You may be able to have one appear in court with you while you testify before the judge.

Orders of Protection are available in divorce, parentage (paternity), custody, domestic partner relationships and families (such as a mother seeking protection from a violent son) cases.. Elder abuse by a family member is all too common. I was involved in just such a situation where a client's late mother was financially and physically abused by her daughter and the daughter's boyfriend. It was very difficult to obtain necessary protection for this woman because the police and courts did not take it seriously.

An Emergency Ex Parte Petition for an Order of Protection will be heard without notice to the violent party if you are afraid that notifying the person of the court action will cause you and/or your children, family members and friends harm.

The person does not have to have carried out any violence yet, A threat of violence may be enough to cause the judge to issue the Order of Protection. I represented a woman recently whose former boyfriend had placed his hands around her throat and threatened to kill her. The judge did not think that was sufficient to issue an Order of Protection, incredibly enough.

Once an Order of Protection is granted, the paperwork is filed with the Sheriff immediately. The information is placed into a special domestic violence computer system. The Order is then placed for service with the Sheriff where the person from whom protection is required is found. Law enforcement officials can check the computer system to determine if there is an Order of Protection in place if there is further contact initiated by the person towards the protected person.

Violating an Order of Protection is a serious criminal transgression. Unfortunately, many times the fearful person contact the police to report contact but the police merely talk to him or her and give a warning. If the offender is taken before a judge for violating the Order of Protection, sometimes the judge lets the person off with a stern lecture. Time and time again, experience has proven that scoldings do not work. Individuals intent on stalking, harassing, electronic contact, harassment at school and/or the workplace, kidnapping and worse, do not respond to gentle reprimands. They must be dealt with to the full extent of the law.

An Order of Protection may be obtained by a private attorney, a legal assistance organization or by an individual. If the Emergency Ex Parte (meaning without notice to the other person) Order is issued, the Court must set a return date for the other side to come to Court for a full hearing on the Petition. After hearing both sides, the judge may continue the Order for a longer period of time or deny an extension of the Order.

It is not uncommon to require domestic violence victims to file for several Orders of Protection. Some of the people return to the violent partner after promises are made that there will be no further violence. This is not the case. Once a person threatens his or her significant other, there is a great likelihood that it will continue.

All domestic violence issues must be taken seriously by the courts and law enforcement. To do less is to encourage and embolden violent individuals.

August 5, 2013

Simon Cowell's Love Triangle: Who is Your Daddy?

Simon Cowell, the rich and well-known show business figure, is embroiled in a scandalous love triangle with his former best friend's wife. This is complicated! The wife is pregnant with Simon's child, conceived while she was married to her wealthy husband of 10 years.

The former couple has a prenuptial agreement.which allegedly pays the wife millions of dollars if the marriage ends. The couple has a young son together. The prenuptial contract kicked in with generous benefits for the wife after 10 years of marriage. You can guess the rest:The wife waited until the 10 year anniversary to announce her infidellty, thus insuring that she receives the big bucks.

This about to be ex-husband and ex-wife live in New York. The husband in the middle of this triangle has now filed for divorce in New York charging the wife with adultery. . He is seeking custody of their son.

New York law is not aplicable to Illinois law but what would happen if this steamy romance involved an Illinois marriage?

We refer to these cases as, "parentage," cases. The former term, "paternity," is still in use as well. The test for paternity was a blood type test. Today, thanks to James Watson and Sir Francis Crick (whom I met when he visited my college), the gold standard parentage test is now DNA. Blood is not required for the test. Any kind of bodily fluid or body cells could be used. Most often, cheek cell samples are used because of the convenience of obtaining samples from the mother, father and child. A long swab is swiped in the throat to obtain a sample of DNA from the mother, child and the suspected father.

Illinois, as most states, presumes that the child born to married parents is presumed to be the child of both parents. In other words, the husband is the presumed father until proven otherwise. There are many cases where the wife has an affair during the marriage but does not know if the father is her husband or her paramour. Sometimes the child bears a striking resemblance to the lover which makes the husband suspicious.

The boyfriend may wonder if he is the father and try to determine whether he is the parent. The law requires the putative (meaning suspected) father to file a Petition to Determine Parentage in Domestic Relations Court within two years after he learns of the situation. The parties could agree to a declaration of paternity naming the boyfriend as the natural father but only after the husband has been determined to not be the father by court order.

There may be a custody fight between the mother and the biological father. There could be a custody fight by the married couple against the boyfriend if they have chosen to continue to raise the child as their own. The legal web which has to be untangled is as messy as the underlying tryst. This is not a do-it-yourself project. If you are involved in a situation like this, get a lawyer!

February 21, 2012

Appeals in Family Law Cases: ILLNOIS Child Support, Custody, Property Division and Maintenance

When can a judge's order be appealed? The answer is: it depends.

Most cases require that a final order has been entered and that it is one which is appealable. Some cases, particularly those involving the welfare of children, are appealable at any time. Other issues may be appealable but must be brought at the proper time. This whole area is a minefield fraught with danger. Many lawyers cannot figure out the correct timing of a family law appeal because of the various rules.

Generally, most trial court orders must be appealed within 30 days of entry. This is very strictly interpreted. Filing too late can and will end your appeal. Filing too early will also result in your case being dismissed.

You may be able to file an emergency appeal in a case involving child custody.
This is not a do-it-yourself job. Find an attorney who is experienced in family law appeals. Do your homework and have copies of your case records to bring to the attorney.

I represented a woman in a divorce case in an appeal of an order which awarded her attorney a large amount of fees. She said that this sum included time he spent with her having sex in his office. This was listed as a, "client conference," on his bill.

She had a sexual relationship with her attorney when he represented her during her divorce. The attorney tried to collect his fees by selling her home at a sheriff's auction. Fortunately, she retained another law firm and was able to stop the sale pending an appeal. A case must be appealed within 30 days of entry of the order being appealed. If there is fraud, duress or undue infuence, the time may be extended, as it was in this case. The court allowed the case to proceed because the woman was persistent in trying to have the trial judge change the terms of the divorce regarding attorney's fees.

In this landmark case, MARRIAGE OF KANTAR, 414 NE 2d 77, 90 IL App 3d 941 (1991), the Illinois Appellate Court overturned the award of attorney's fees to the lawyer who billed his divorce client for sex. She convinced the appeals court that the trial court order was unfair to her because of the sexual relationship with the attorney she trusted.

At the time this case was heard, an attorney was not prohibited from having a sexual relationship with a client. Now the law has changed. It is prohibited nowadays under most circumstances. It has always been and is to this day, a very unwise thing to do.

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February 21, 2012

ILLINOIS, CHILD SUPPORT AND THE RIGHT TO A COLLEGE EDUCATION: GREIMAN V. FRIEDMAN

Does Illinois require a divorced parent or biological parent to pay for a college education? The answser is that it depends on the academic record of the child, whether the child chooses a private school or a state school and the financial resources of each parent and the child. This is a decision best discussed by the parents and the child before the college application process begins. Unfortunately, this is not done in many homes split by divorce. The situation is complicated by remarriage of the parents or the existence of other biological children of these parents. Step-children, unless they have been legally adopted, do not count in this equation. The step-parent may have a desire to support these children but is under no legal obligation to pay for their college expenses.

I had the privilege of successfully appealing the post-judgment (after the divorce was finalized, in this case, years later), appeal of the leading case in Illinois regarding the obligation to pay for college education of children of divorced parents, GREIMAN V. FRIEDMAN, 414 N.E. 2d 77, 90 Ill. App. 3d 941 (1980).

Illinois law provides that a parent in a divorce or parentage case may be required to pay for the college or vocational education of a child, 750 5/513 ILCS. This support may be ordered during or after judgment is entered in a family law case. College expenses are considered to be a form of child support, even if the child is over 18 years of age. At the time the child is ready for college, the court considers the financial circumstances of each of the parents, including the income and expenses of each. The financial picture of the student is also examined. Has the student worked to save money for college? Has the student spent money foolishly on an expensive car or partying rather than plan to contribute to his college fund?

Perhaps most importantly, has the student been diligent in his studies? Has she been a good student? If she is enrolled in college already, is she scheduled to finish in four years? If the student will not graduate on time, there should be a good reason such as switching majors or transferring schools, study abroad or illness. Partying, incomplete grades, withdrawing from classes and bad grades are not looked upon favorably by judges.

The courts cannot order a parent to pay for any college expenses after the child receives a bachelor's degree under Illinois law. A parent may be ordered to pay for college expenses even after the child has graduated, where there was no prior order addressing the issue of college. In one recent case, the court held that the children born during a void marriage were still entitled to receive payment from the father after they had received their degrees.

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February 20, 2012

Katy Perry Risked Losing Lots of Money without a Prenuptial Agreement: Prenuptial and Postnuptial Agreements in Illinois

Recording artist Katy Perry and her husband, British hair spray afficiando and comedian Russell Brand, have announced their plans to divorce after less than two years of marriage. That seems like a long term commitment after the snap-of-the-finger length of the wedded bliss of Kim Kardashian. It is reported that Katy and Russell did not have a prenuptial agreement. Recent reports have said that the couple has wisely agreed to resolve their issues amicably. Each is to keep his/her own property.

It is amazing that stars of that magnitude and income failed to have a prenuptial agreement. This document, if drafted and signed properly, spells out the details of who gets what upon divorce. Child custody and support may be addressed but the court is not obligated to follow it.

The key to making a prenuptial agreement stick is to have full disclosure of each party's debts and assets prior to the wedding. Each party needs to have his own attorney. There cannot be any duress. The document must be given to each person ahead of time to provide time to review it, Handing a bride a legal document to sign as she walks down the aisle is not going to create an effective prenuptial agreement. That doesn't stop people from trying to perpetrate this fraud. The sad truth is that sometimes it sticks because of intimidation by the wealthier party.

The spring wedding season is almost here. If you are taking a trip down the aisle, please consult an attorney. Marry in haste, repent at leisure. Plan for a possible dissolution now.

Illinois has laws permitting prenuptial and postnuptial agreements under 750 ILCS 5/503. If you didn't have the foresight to obtain a contract before the wedding, you can have your attorney draft one after the wedding. Many marriages end in divorce. Plan for the unwanted, just as you would by purchasing home, life and auto insurance.

Written by Attorney Amanda Rubel Portes

February 20, 2012

Teen Mom Show and ILLINOIS Child Support Laws 750 5/505 ILCS

On a recent episode of MTV's Teen Mom 2 television show, viewers watched as 19 year old Leah Messer and her 21 year old husband, Corey Simms decided to end their marriage of six months. They are the parents of two year old twin girls.

The West Virginia residents first made reality show headlines with their appearances on MTV's 16 and Pregnant. The cameras documented Leah's pregnancy and her relationship with Corey. The two of them had met a short time before she became pregnant with the twins. One of their twin daughters is developmentally disabled.

Corey proposed to Leah with the cameras rolling. They married in the fall of 2010 and were divorced in June of 2011. The cameras are continuing to follow these young parents and their twins.

Each parent retained an attorney. The care and custody of the twins was a very important issue, as it is to most parents. The developmentally disabled twin needs special care.

How would these issues be addressed under Illinois law?

The parents could agree on either of two kinds of custody: sole or joint. In sole custody, the child lives with that parent, who is responsible for all the day-to-day care of the child. This parent may have the right to make all decisions for the child or it may be shared with the non-custodial parent.

The parents could share custody with the child residing with one parent. This is known as Joint Parenting. This requires a written agreement detailing the custody arrangement, including visitation, vacations, holiday schedules and education, among other issues.

Each type of custody arrangement requires the parents to take a parenting class through the court system or one of its agencies. This is supposed to remind the parents that the welfare of their children is most important and to teach them to deal with the conflict inherent in most divorces.

The amount of child support to be paid by the non-custodial parent is based on a percentage of that person's net income. For one child, it is 20%, two children 28%. These are guidelines and not written in stone. Families with high incomes and assets may not have these applied by the judge. A child with special needs will receive extra consideration, whether it is in the form of child support or an order to pay for needs such as special equipment, education or help at home.

Child support is always subject to change or modification. It may be increased or decreased if brought to court by the filing of the necessary petitions by either party.

Navigating the thorny issues of child support and visitation are rough for mature adults. Stay tuned to see how this very young couple and their children fare.

This article was written by attorney Amanda Rubel Portes, an associate of the firm.

February 20, 2012

Never Too Late to Collect IL Child Support, Marriage of Davenport, 388 Ill. App. 3d 988 (2009)

875413_balance.jpg The Illinois Appellate Court has ruled that 26 years is not too late to collect a past due order for child support from an ex-husband who failed to pay about $26,000.00 to his ex-wife. When the ex-wife returned to court to pursue the back support, the child was 44 years old.

The ex-husband claimed that trying to collect the money from him after 26 years was not fair because too much time had passed. The court did not agree and the ex-wife collected her money from the sale of his recently inherited family property.

Are you owed unpaid child support and/or maintenance (formerly called, "alimony") from an Illinois divorce or parentage case? Illinois family law requires that the unpaid amount incur 9% interest per year. This can add up to a substantial sum. Your ex could also be required to pay your attorneys' fees and costs, too.

Get out your court papers if you believe you are owed money. You need to have a court order which granted you child support and/or maintenance. If you cannot find the paperwork, then you can order it from the court where your case was heard. The file may have to be ordered from the court warehouse if the case is not active. You will need to have the case number and the names of the parties. If you do not have the case number, the personnel in the office of the Clerk of the Court may be able to find it for you. It is possible that you can find it online in the court records. Many courts are now computerized whle others are just beginning to go digital.

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