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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.

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

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.