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Recent Blog Posts
Major Changes to Illinois Divorce Laws Coming in January
Thanks to legislation passed by the State House and Senate earlier this year and signed by Governor Bruce Rauner in July, divorce laws in Illinois are being rewritten for the first time in nearly 40 years. The legislation took the form of a single bill, introduced as Senate Bill 57 in January, 2015, but its effects will be widespread, impacting a significant number of family law provisions, including those regarding divorce, child custody, and, as discussed on this blog previously, parental relocation. Future posts will address some of the other areas of change, but the amendments to the divorce laws are likely to begin affecting Illinois residents very quickly.
Only No-Fault Divorce
While every state in America currently provides couples the ability to divorce on the “no-fault” grounds of irreconcilable differences, a little less than half still allow divorce on fault grounds as well. Currently, that is the case in Illinois, as an individual may seek a divorce based on the actions or behavior of his or her spouse, including ongoing substance abuse, mental or physical cruelty, abandonment, or adultery. Beginning January 1, 2016, however, fault grounds will no longer be an option. Instead, all divorces will be officially granted on the basis of irreconcilable differences.
Flaws in the System: Wrongful Convictions
In many high-profile criminal cases, the court of public opinion will decide on a defendant’s guilt long before a trial ever begins. In fact, you can probably think of several examples in which you “knew” a famous suspect was guilty or not guilty of a violent crime simply based your impressions. American society, however, places a great deal of faith in the criminal justice system and, for the most part, if a defendant is convicted in court, the general public tends to believe he or she committed the crime. But what if he or she did not and was convicted anyway? Sadly, wrongful convictions sometimes ruin the lives of innocent people, and some of the reasons behind flawed verdicts may surprise you.
Factors of Wrongful Convictions
A recent study funded by the National Institute of Justice and conducted by a team from American University in Washington, D.C., looked at more than 450 cases to identify the factors that could contribute to a defendant being wrongfully convicted. In each case, the defendant, whether convicted or not, was later found to be factually innocent of the crime of which he or she was accused. The researchers, led by Dr. Jon B. Gould, J.D., director of the Washington Institute for Public and International Affairs Research at American University, compared the cases of wrongful convictions with those in which an innocent suspect was found not guilty or had the charges dismissed.
Drive Sober: DUI and Seatbelt Campaigns Get Final Summer Push
As summer draws to a close in northern Illinois, law enforcement officials in a number of area municipalities are ramping up safe driving enforcement activities. This comes as part of a nationwide effort to crack down on drunk driving, along with a continued focus on ensuring drivers are using seatbelts. The highly-publicized campaign got underway last weekend and will continue through the Labor Day holiday on September 7.
National DUI Awareness
The National Highway Transportation Safety Administration has invested more than $13 million in advertising and public awareness to spread the word about this focused operation. It comes as part of the NHTSA’s “Drive Sober or Get Pulled Over” campaign, aimed at reducing accidents and injuries related to driving under the influence (DUI) of alcohol or drugs. More than 10,000 local police departments throughout the country are expected to participate in the effort, including many in the Chicagoland region. There is expected to be zero tolerance for driving with blood alcohol content (BAC) above the legal limit of .08 percent. The NHSTA wants you to know that if you drive drunk, you will be arrested.
New Guidelines Regarding Relocation with Your Child
As the primary residential parent, you have taken on a great deal of responsibility for the well-being of your child. In an ideal world, the other parent would remain cooperative in your joint efforts in raising the child, or, at the very least, stay current on child support and exercise visitation rights. Reality, however, is not always ideal, and, in some cases, the best option for you and your child may lie in pursuing opportunities out of town or, sometimes, out of state. If you are already considering such a move, it is important to be aware of changes to parental relocation laws that are set to take effect in January, as the new provisions could greatly impact your necessary steps.
Current Laws Affect Out-Of-State Moves
Existing provisions in Illinois law require you to seek the other parent’s consent if you wish move with your child to a new home outside of the state. Once you have obtained permission, you will need to notify the court overseeing your custody order. If the other parent will not allow the move, you may seek the court’s override, but you will be required to prove that the move is in the best interest of the child and that you are acting in good faith.
Governor Expresses Support for Marijuana Decriminalization, Vetoes Bill
The latest chapter in the ongoing story to reduce the population of overcrowded Illinois prisons unfolded in a rather anticlimactic fashion last week, as a bipartisan measure to decriminalize minor possession of marijuana was vetoed by Governor Bruce Rauner. Despite his ongoing efforts to help the prison system become effective, Rauner believed that the bill, in its current form, is a little too lenient and that the amount of marijuana to be considered decriminalized needs to be lowered. The governor did indicate, however, that he supports the legislation’s intended goals, but that such changes "must be made carefully and incrementally."
Goals of the Bipartisan Legistlation
As passed by the House and Senate earlier this year, the proposed law would make possession of up to 15 grams of marijuana a civil offense, similar to a traffic ticket. Rather than facing criminal prosecution, an offender would be required to pay a fine ranging from $55 to $125. The bill also sought to relax the state’s current zero-tolerance law regarding marijuana and driving under the influence. Under current statutes, a driver can be charged with DUI for showing any trace of cannabis in his or her system regardless of impairment or how long ago it was ingested. Lawmakers looked to establish an impairment standard, similar to a blood alcohol content limit, of 15 nanograms of THC per milliliter of blood.
Transmuted Property: Changing the Disposition of an Asset
As a marriage comes to an end and the spouses begin to consider divorce, they must start to identify the property and assets that constitute the marital estate. This is an important part of the process, as a recent post on this blog discussed, because any and all owned property must be classified as a marital or non-marital asset for the purposes of property division. What may be surprising, however, is that property that was once non-marital can become marital property through a process called transmutation, effectively allowing it to be divided in divorce.
What is Non-Marital Property?
The Illinois property division laws provide a pretty clear description of assets that are considered to be non-marital. As you might expect, property that was acquired before the marriage—and not obtained "in anticipation" of marriage—is not a marital asset. In addition, non-marital property also included assets acquired after the marriage by means of:
Understanding Equitable Distribution in Divorce
Despite becoming a colloquial cliché, your ex-spouse will not necessarily get half of everything after divorce—not in Illinois, anyway. Instead, property division laws in Illinois are based on the principle of equitable distribution, a concept much more complex than adding up assets, subtracting debts, and splitting the result down the middle. Equitable distribution requires a couple—and the court, if necessary—to divide the marital estate in a manner that is fair, just, and accounts for each partner’s contribution to the marriage.
What is the Marital Estate?
The first consideration in the division of property process for a divorcing couple is to determine the assets and debts that are to be allocated. According to Illinois law, the marital estate includes any property acquired by either spouse during the course of the marriage, with very few exceptions. Gifts and inheritances to a particular spouse are not considered to be marital property, nor are property and proceeds generated by the use or sale of such gift or property. Likewise, property owned previous to the marriage and proceeds generated by it are not marital assets either.
No Warrant, No Cell Phone Search
Being arrested for a crime can be a very frightening experience, especially if it has never happened to you before. It is easy to get caught up in trying to protect yourself by simply agreeing to any requests by the arresting officer, including searches of your property that might otherwise require a warrant. While becoming confrontational with law enforcement is not likely to be in your best interest, knowing your rights certainly is. Any violation of your rights could result in the charges against you being dismissed completely, which, as of last year, includes a warrantless search of your cell phone.
Search of Your Person
When you are arrested or detained, an arresting officer is permitted to conduct a search of your person for items that would present a danger both to him or her and to yourself. The search is also designed to prevent the destruction of evidence currently on your person, including controlled substances, drug paraphernalia, or other proof of criminal activity. Last summer, however, the United States Supreme Court declined to extend permission to the search of electronic devices, ruling instead that a warrant based on probable cause is required first.
Right of First Refusal for Children Under Illinois Law
The right of first refusal is the requirement that a divorced or separated parent always contact his or her child's other parent to care for the child when he or she needs a babysitter, rather than contacting another relative or a friend. If the other parent cannot take the child at that time, the parent seeking childcare may then seek it from another individual – but only after first offering it to the child's other parent. This is because, in most cases, it is best for a child to spend time with his or her parents.
In 2013, the Illinois House of Representatives passed HB2992, which amended the Illinois Marriage and Dissolution of Marriage Act to allow courts to consider this right when developing child custody arrangements. The amendment provides family courts with the discretion to include the right of first refusal in child custody or visitation orders as appropriate.
Is Court Supervision a Conviction?
When you have been charged with a crime for the first time, it can be very overwhelming. The criminal justice system can seem very confusing, impersonal, and, often, extremely frightening. You probably realize that a conviction on criminal charges can carry serious penalties and greatly impact your future opportunities. In some cases, however, such as a first-time DUI offense or misdemeanor retail theft, you may be eligible for court supervision as a preferable alternative.
Court Supervision Defined
Under Illinois law, for most misdemeanor offenses, a presiding judge may elect to place a defendant under the supervision of the court rather than immediately handing down a conviction. An order for court supervision, in effect, places the criminal proceedings on hold for a reasonable amount of time based on all of the relevant factors in the case. The law limits the length of such orders to a maximum of two years, which may only be extended in very specific circumstances. During the period of supervision, a defendant is expected to fully comply with the conditions set forth by the court, or risk imprisonment and revocation of the order.
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