Thursday, August 21, 2014

Spousal maintenance guidelines become law in Illinois

A new public act dramatically changes how spousal maintenance is determined for divorcing couples whose combined gross income is less than $250,000.

The law, P.A. 98-0961, which was crafted by the ISBA Family Law Section Council, creates a formula for calculating maintenance based on the gross income of the parties and the length of the marriage. Up till now, judges calculated maintenance without using a statutory formula similar to the one that applies to child support awards, instead relying on a list of factors that appear at sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act. As a result, maintenance decisions vary widely, and lawyers have found it difficult to predict what a court will do when awarding maintenance.

The new formula will change that, once a court makes the threshold decision that maintenance is appropriate in a given case. Although judges aren't required to use the formula, they must make a finding explaining why they did not.

Under the formula, a maintenance award should equal 30 percent of the payor's gross income minus 20 percent of the payee's gross income, not to exceed 40 percent of the parties' combined gross income when added to the payee's gross. Here's an illustration of how the math works.

Assume the soon-to-be-ex-husband grosses $50,000 a year, and his wife earns $30,000. Thirty percent of $50,000 is $15,000, and 20 percent of $30,000 is $6,000. Subtract $6,000 from $15,000, and voila – the husband owes the wife $9,000 a year in maintenance. Simple enough.

But things aren't so simple in this example, because that $9,000 payment would push the wife's annual gross over the 40-percent-of-combined-income limit. How? If you add $50,000 plus $30,000, you get $80,000, 40 percent of which is $32,000. That $32,000 – $2,000 more than the wife's annual gross – thus constitutes the cap on her income after maintenance. Therefore, the husband in this case owes the wife only $2,000 per year under the formula. (Note that the higher the payor's income is in relation to the payee's, the less likely the 40-percent rule is to limit the payee's award.)

A separate formula based on the length of the marriage establishes the duration of the maintenance award. For example, for a marriage that lasted five years, the maintenance award would continue for 20 percent of that span, or one year. On the other end of the continuum, maintenance could be permanent or last the length of the marriage for a couple that has been married 20 years or more.

"In Illinois, awards of maintenance have become increasingly and disturbingly inconsistent," ISBA Director of Legislative Affairs Jim Covington wrote in a letter to Governor Quinn before the law was enacted. "Even when facts and circumstances are remarkably similar, maintenance awards vary widely and unpredictably – from case to case, from courtroom to courtroom, from circuit to circuit, from region to region.

"Thus, with the best of intentions, judges, lawyers, and clients are routinely forced to reinvent the wheel with each and every case, wasting valuable time and money of courts and clients," Covington wrote. "Appellate cases often aren't as helpful as they should be because only the knotty and contentious cases get appealed – hard cases make bad law."

Covington noted that the law makes the following changes in addition to the formula:

  • Prevents a judge from ordering unallocated maintenance unless the parties agree to it;
  • Authorizes a judge to permanently bar maintenance for marriages of 10 years or fewer, something that is now only available when the parties agree or maintenance is paid in a lump sum;
  • Specifies that judges must subtract maintenance payments from the payor's income for purposes of calculating child support.

The bill "doesn't change the primary judicial responsibility – determining whether maintenance is appropriate" in the first place, Covington wrote. "If maintenance is appropriate, then guidelines can serve as a reference to assist judges and promote settling of cases."

The law takes effect January 1, 2015.


Posted on Aug 18, 2014 by Mark Mathewson






Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Friday, May 9, 2014

Interesting Postnuptial Agreement Case in Illinois

In re Marriage of Iqbal

Illinois Appellate Court

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2014/2ndDistrict/2131306.pdf

Postnuptial agreement (PNA) signed by parties was unenforceable as it violates public policy. PNA gives counselor sole power to determine which parent will have custody of children, as counselor has sole power ot declare whether party seeking divorce is doing so reasonably, and is sole arbiter of whether either party has violated any part of PNA so as to forfeit any claim to custody. PNA is substantively unconscionable, and thus unenforceable, as its terms are significantly one-sided. Court's grant of sole custody to wife not against manifest weight of evidence, as husband often spoke negatively of wife and was found likely to interfere with children's relationship with wife.(ZENOFF, concurring; BURKE, specially concurring.)






Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Thursday, March 20, 2014

Eavesdropping Statute

People v. Clark (PDF) and People v. Melongo (PDF)

Today, in two separate decisions, People v. Clark, 2014 IL 115776, and
People v. Melongo, 2014 IL 114852, the Illinois Supreme Court considered
the constitutionality of several sections of the eavesdropping statute, 720
ILCS 5/14-2.  In each case, the Court unanimously held that the current
eavesdropping statute is unconstitutional because it is overly broad.

In Clark, the defendant recorded courtroom conversations involving himself,
his attorney and the presiding judge.  He also recorded a hallway
conversation with the adverse party's counsel.  Clark did not obtain
consent from any of the parties to record the conversations.  He was
indicted under the Illinois eavesdropping statute.  He filed a motion to
dismiss the indictment and argued that the section under which he was
charged violated his First Amendment rights and his right to substantive
due process.  The circuit court agreed and dismissed the indictment,
bringing the matter before the Supreme Court in the State's direct appeal
in defense of the legislation.

Writing for the Court, Chief Justice Garman noted that the Legislature
amended the eavesdropping statute in 1994 to prohibit the recording of any
conversation unless all parties consented, even if there were no
expectation of privacy.  Because this criminalizes the recording of a whole
range of conversations that cannot be deemed in any way to be private, and
because the legislation covers a broad array of wholly innocent conduct, it
is overly broad.  Having held that a substantial number of the statute's
applications are unconstitutional, the Court found it unnecessary to
address the remaining arguments.

In Melongo, which was not consolidated with Clark, but had been argued on
the same day, Chief Justice Garman, again writing for a unanimous Court,
stated that the Court's analysis was guided by its holding in Clark.
Again, the strictures of the statute were not found to serve any legitimate
interest in protecting conversational privacy, rendering the statute
unconstitutional on its face.




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Friday, February 14, 2014

Federal Judge Grants Class Action

2/12/14

Federal Judge Grants Class Action for all Medicaid-Eligible Children Under the Age of 21 who have been Diagnosed with a Mental Health or Behavioral Disorder in the State of Illinois Attorneys Robert H. Farley Jr., Michelle N. Schneiderheinze and Mary Denise Cahill have secured a major court ruling in the litigation against the State of Illinois for failing to comply with federal law which requires all Medicaid eligible children up to the age of 21 to receive diagnostic and treatment services to address their behavioral or emotional or mental health disorders. On February 13, 2014, United States District Court Judge John F. Tharp, Jr., in N.B., et. al., v. Hamos, Case No. 11-6866, ruled that the lawsuit filed by nine Medicaid-eligible youths (under age 21) who have been diagnosed with various mental illnesses and/or emotional or behavioral disorders, including developmental disabilities can proceed as a class action against the State of Illinois. Judge Tharp certified the class defined as follows: All Medicaid-eligible children under the age of 21 in the State of Illinois: (1) who have been diagnosed with a mental health or behavioral disorder; and (2) for whom a licensed practitioner of the healing arts has recommended intensive home- and community- based services to correct or ameliorate their disorders. The lawsuit against the State of Illinois alleges that the Illinois Medicaid program fails to meaningfully provide intensive community-based residential or outpatient care for children with mental illness and emotional or behavioral disorders, instead over-relying on hospitals to provide temporary acute care, followed by grossly inadequate outpatient services consisting of little more than medication management and one hour per week of counseling. Judge Tharp has scheduled a status hearing on this case on March 13, 2014.


READ THE OPINION




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Thursday, February 6, 2014

Be Careful with Settlement Agreements

Settling your Bloomington Illinois Divorce is almost always better than litigating. But, if you sign a Marital Settlement Agreement in Illinois, you had better be very careful as to what is, and is not, in that agreement, as this recent case from the Illinois Appellate Court points out:


In re Marriage of Chez (PDF)
Court properly found that joint property provision of parties' premarital agreement (PMA) was clear and unambiguous, even though it was silent on how to apportion costs in distribution upon dissolution. Parties, through PMA, agreed to opt out of coverage under Marriage Act and to set their own rules as to property. Court properly distributed two joint tenancy properties equally, and made no order of reimbursement of costs spent on one property, as PMA did not provide for it. Testimony of parties as to oral agreements is not relevant to interpretation of PMA, as PMA provides that any agreements as to real property must be written. (QUINN and PIERCE, concurring.)



Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2

McLean County Courthouse child-care room cuts hours

January 29, 2014 6:00 am  •  By Paul Swiech | pswiech@pantagraph.com



BLOOMINGTON — Less funding will mean reduced hours of operation for a service that helps to protect children while their parents are in court.

The Children’s Room, operated by Children’s Home + Aid in the McLean County Law and Justice Center, will be closed on Wednesdays and will close at 3 p.m. rather than 5 p.m. on the other weekdays, Tiffanny Powell, the agency’s family support services program manager, said Tuesday.

The cut will take effect next week.

“It’s really devastating to me to have to do this,” Powell said. “There will be children in the Law and Justice Center who will hear things that they shouldn’t.”

Judge Elizabeth Robb, chief judge of the 11th Judicial Circuit, noted that court proceedings can be long and harsh.

“Having a safe and child-friendly environment for children to play during court proceedings has been extremely beneficial to the children and to their parents and family members,” Robb said in a prepared statement. “We are very distressed to hear that, due to funding cuts, the hours of operation will have to be curtailed.”

The service includes three rooms for children up to age 12 whose parents have courthouse business, including those involved in domestic violence and child custody cases, Powell said. The service, staffed by an outreach worker, includes a nursery, toys and a computer station. In the fiscal year that ended June 30, 550 children used the service.

The service is supported by $5 from each civil case filed in McLean County as well as private donations. The service received $14,000 less from court filing fees last year because fewer civil cases were filed.

In addition, so far this fiscal year, private donations have dropped $3,000, said Angie Fulton of Children’s Home + Aid. The Children’s Room has an annual budget of $47,000.

Fulton hopes private donors can make up the difference.

“This is an unduplicated, needed service in our community,” she said.




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2



Friday, January 24, 2014

Right of First Refusal

The right of first refusal is now the law in Illinois for family law cases.  House Bill 2992 that went into effect January 1, 2014, amends the Illinois Marriage and Dissolution of Marriage Act.  The new 750 ILCS 5/602.3 specifically states that if the court awards joint custody or visitation rights, the court may consider, consistent with the best interest of the child, whether to award one or both parents the right of first refusal to provide child care for the child during the other party's parenting time.

For purposes of this statute, "right of first refusal," unless otherwise agreed upon by the parties, means that if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children.

If you have been following this act you will have noticed that the final language is actually different than how it was originally introduced in the Illinois legislature.  Originally, the proposed change would have been mandatory on the court and spelled out that the time frame had to be more than four hours before the act was triggered. The statute that is now in effect at least leaves it up to the judge's discretion as the final arbiter of the best interest of the child in a custody dispute, but it leaves the "significant period of time" in which this child care would take place open to interpretation.





Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2



Monday, January 20, 2014

Bloomington Illinois (McLean County) – Online Access

McLean County – Online Access


The McLean County Circuit Clerk and Circuit Court are pleased to announce that McLean County is now offering information on all open civil, traffic and criminal cases through their public access system. The link to the public access system is:


http://www.mcleancountyil.gov/index.aspx?nid=137


Please forward any questions or comments regarding on-line access to either Don Everhart, Circuit Clerk, or William Scanlon, Trial Court Administrator




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2



Saturday, January 18, 2014

Bloomington Illinois Grandparents: A Recent Appellate Case that may Affect your Custody Case

Dumiak v. Kinzer-Somerville

Illinois Appellate Court
 
Civil Court
Citation
Case Number:
 2013 IL App (2d) 130336
Decision Date:  September 12, 2013
District:  2d Dist.
Division/County:  Du Page Co.
Justice:  ZENOFF
Holding:  Affirmed.


Court properly denied grandparents' petition for custody following evidentiary hearing on issue of standing. Grandparents failed to establish prima facie case of standing, and were required to show that child was not in mother's physical custody when they filed their petition. Court cannot reach best-interests analysis absent a nonparent's standing. (BURKE and HUDSON, concurring.)



Jon D. McLaughlin

Message From Chief Judge Elizabeth Robb Regarding the Family Visitation Center


The Family Visitation Center, operated by the Children's Home & Aid, will no longer receive funding from the Department of Justice-Safe Havens Grant.  This will result in a reduction in hours and times of operation for the Family Visitation Center.  Additionally, when the FVC reaches capacity, families will be put on a waiting list.  Cases will be triaged for domestic violence, and Order of Protection cases will be placed at the top of the waiting list in the order in which they are received.  The Family Visitation Center will continue to be unable to service cases that have any type of DCFS involvement.


The new hours of operation are as follows and will be effective on November 1, 2013

Wednesdays   5:00 p.m.--7:00 p.m.

Fridays            5:00 p.m.--7:00 p.m.

Saturdays        8:30 a.m.—5:30 p.m.

Sundays           8:45 a.m.—5:45 p.m.

 

Families who are currently being served will be notified of the changes in the schedule.  None of the Family Visitation Center policies and procedures have changed, and the safety measures, including providing separate entrances and staggered times for drop off and pick up, remain in effect.


If there are any questions regarding these changes, please contact Marie McCurdy, Program Supervisor at 309-834-5206 on Fridays from5:00 p.m.---7:00 p.m. or by emailing her at mmccurdy@childrenshomeandaid.org or Meg Backas, Program Director-Family Support Services at 309-834-5259 or mbackas@childrenshomeandaid.org."

Now you Can Use Electronic Insurance Cards when You Get Pulled Over

You may have heard the good news that the Illinois Office of the Secretary of State recently approved the use of electronic insurance ID cards as acceptable proof of insurance.
You can simply saved an image of your insurance card on your phone and pull it up on the screen when you need it. So just take a quick photo of the cards when they come in the mail, and you are set!



Best Regards, 

Jon D. McLaughlin

'Netflix Adultery' Plagues 51% Of Relationships, According To Netflix

"Netflix adultery" refers to the act of watching a show "that was supposed to be our thing" without your partner, due to an obsession with said show and / or an overwhelming desire to find out what happens next. Side effects include having to fake shock in response to surprising plot turns and may result in trust issues. Netflix is currently investigating this phenomenon of rampant infidelity.

In a study of 2000 adults, 51 percent said they either had or would commit the act of betrayal. Of those who confessed to cheating, 41 percent reframed from sharing spoilers with their significant other. 21 percent admitted to watching the next episode while their partner was sleeping next to them in bed.

"Netflix adultery" can be prevented by obtaining a hobby, just going outside for once or picking up another TV show. Particularly addicting shows, like "Scandal" or "Breaking Bad," will increase your risk.


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Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


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