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Dissolution of Marriage

Thu, 24 Sep 2020 20:16:24 GMT

What happens when it comes to the assets or property?

Property Division and Asset Division

Every marriage has at least one topic in common – property. Whether they own a million-dollar mansion or a beat-up RV, a couple will always have to divide up the property - including any real estate or financial accounts and debt. It is more economical to come to an agreement on these issues but that obviously doesn’t always happen. If you make a court decide, it will be up to you and your lawyer to prove to the judge why the property division should occur the way you want it to and not the way your spouse does.

Certain assets remain the exclusive property of one of the marriage partners, even after marriage, and some will be divided. This is done with debts as well. Most debt incurred while married will be shared upon dissolution, though a few personal debts may remain exclusively yours.

Remember that the divorce judgment establishes the obligation between the spouses but does not change the contractual obligations of one or both spouses to the lender .

Marital or Community Property

Marital or community property is defined as assets and debts newly acquired during the marriage, either jointly or by one party, other than by a gift or inheritance to one spouse.

Most states do not have a set mathematical formula for division, and the court will determine a fair distribution based upon a combination of factors as set forth in the state’s statutes.

Non-Marital or Separate Property

Non-marital or separate property are the assets and debts owned prior to the marriage that remain unchanged, or gifts or inheritances during the marriage to one spouse (usually including gifts by one spouse to the other).

Commingled Property

Commingled property are the assets and debts that were non-marital but which were traded in to acquire new property, repaired or enhanced during the marriage with marital funds, or non-marital debts paid with marital funds.

Dissipation

Dissipation is the use of marital assets or creation of marital debt by one spouse for non-marital purposes once the marriage has begun to unravel. The spouse found to have caused dissipation might be required to reimburse the marital estate.

Premarital Agreement:

Also known as a prenuptial agreement, a premarital agreement is the primary method of keeping separate property from becoming joint property after marriage. A premarital agreement specifies the separate property of each party, any property agreed to be joint property, and dictates how property acquired during the union will be treated as either separate or joint.

Real Estate

The acquisition of real estate in joint names or the transfer of existing real estate into joint ownership creates legal rights and liabilities for both parties. Real estate acquired by one spouse after marriage is generally going to be treated as marital property subject to the claims of the other party.

If the desire is not to create rights of the spouse in real estate, a marital attorney should be consulted prior to the acquisition of the property to determine if segregation of the property is legally possible.

Business Property

For income-producing real estate and self-employment business assets, the creation of a business entity, such as a corporation, limited liability company or trust, can be used effectively to segregate the property. While appropriate efforts may segregate the property itself, the income from the business during the marriage – and possibly increases in value of the business property – may still be marital property.

If you find yourself in a position where your marriage has failed or failing, we can help. Call (217) 367-1647 to schedule your consultation.

Estate Planning and the Coronavirus Pandemic

Thu, 14 May 2020 19:21:34 GMT

The coronavirus pandemic has many of us on edge. We’ve all been forced to face our fears in some way, whether it’s the fear of falling ill, losing a job or having to spend time alone. With all these anxieties and unknowns weighing on your mind, it might feel like there’s a pressing need to get your affairs in order ― just in case.

Though most people who contract COVID-19 experience only mild symptoms, it doesn’t hurt to be prepared if you do need to be hospitalized. It can feel scary thinking about getting sick or not being able to make decisions for yourself, but an estate plan is meant to ease your fears. After all, wouldn’t you feel better knowing that the burden of making health and financial decisions will never fall on unprepared family members?

The truth is that just about everyone should have an estate plan, even if there is no looming health threat. So if you don’t have one, there’s no better time than the present to put one together.

Estate planning is more than just having a will prepared. A strong estate plan will also include several other important documents, such as a revocable trust (sometimes called a living trust), financial powers of attorney, health care powers of attorney, and more. All of these documents are important and serve a role in overall estate planning.

In light of the current situation, the two most important documents to have on hand are medical and financial powers of attorney. Think about it. You need someone who can do your banking or make your medical decisions if you are quarantined in your home, admitted to the hospital or become incapacitated.

A financial power of attorney document is a legal document that gives an agent the authority to carry on a your financial affairs and protect their property by acting on your behalf.

A health care power of attorney is a legal document that gives an agent the authority to make health care decisions on your behalf if you become incompetent or incapacitated.

Without a power of attorney, someone will have to go to court to request the appointment of a guardian for you to have these powers if you are incapacitated, and this is a process that is time consuming and sometimes very expensive.

A complete estate plan is a financial investment in your future, and can save you thousands of dollars.

For help with your estate plan, call (217) 367-1647 to schedule your appointment today. Telephone, video, and in person appointments are available.

By Duane A. Deters

Covid-19 Masks in Public & Conceal Carry

Mon, 27 Apr 2020 17:39:19 GMT

The recent proclamation from Governor Pritzker has sparked some interesting questions when it comes to the directive for wearing masks in public. In particular, what is a person who holds a conceal carry license supposed to do when confronted and instructed by an authority figure to wear a mask? About 7 years ago, conceal carry became legal in Illinois. As part of the Firearm Conceal Carry Act, it was necessary to amend the Unlawful Use of Weapons statute. (720 ILCS 5/24-1) Before 2013, it was a felony to carry a loaded firearm on your person in public. The unlawful use of weapons statute makes it illegal and at least a class 4 felony for a person to carry or possesses in a vehicle or on or about his or her person any pistol, revolver, stun gun or taser or firearm or ballistic knife, when he or she is hooded, robed or masked in such manner as to conceal his or her identity.

This creates a dilemma for the law abiding conceal carry permit holder. He or she has a right to carry a firearm in certain locations, and now, beginning May 1, that same person must wear a mask if in public and in a situation where one cannot socially distance from others. While an overzealous prosecutor, one who wants to make a name for himself may be looking for an opportunity to prosecute the otherwise lawful conceal carry permit holder, there is a way around this predicament. It would seem if the COVID-19 mask does not conceal a person’s identity, they are not in violation of the law. How much of one’s face must be seen in order for the identity of a person to not be concealed could be a question of fact for a jury. If people still know who you are with your mask on, you are probably ok. If the family pet has trouble, you may as well. The picture at the beginning of this post is not a mask we'd recommend while lawfully carrying concealed. The best course of action is, as always, to exercise good judgment and to remember what you were taught in your conceal carry certification or recertification class.

By Duane A. Deters

PARENTING TIME DURING THE CORONAVIRUS

Wed, 15 Apr 2020 16:10:20 GMT

During these unprecedented times during the Covid-19 outbreak, it seems like everything is uncertain and up in the air. On Friday, March 20, 2020, Governor Pritzker enacted Executive Order In Response to COVID-19 (COVID-19 Executive Order No. 10), otherwise known as the “Shelter In Place” order. The order provides that all residents of the State of Illinois must stay home, practice social distancing and that all “non-essential businesses” must cease operations (with certain exceptions). This order left many parents with questions, such as “Do I still have to hand over my children to the other parent?” Before Governor Pritzker clarified his initial shelter in place order, the answer was that we simply didn’t know. However, as the governor has expanded his order, we have more clarity. Pursuant to Section 14(e) of the order, it provides:

Essential Travel. For the purposes of this Executive Order, Essential Travel includes travel for any of the

following purposes. Individuals engaged in any Essential Travel must comply with all Social Distancing

Requirements as defined in this Section:

…(e) Travel required by law enforcement or court order, including to transport children pursuant to a

custody agreement. (Emphasis added)

So in short, the answer is yes! You must continue to comply with your parenting agreement. COVID-19 is not an excuse to deny the other parent his or her court-ordered parenting time. However, this would obviously not apply if the child(ren) has been somewhat exposed to the virus and is in self-isolation or is experiencing symptoms of the virus. If this is the case, the parent in possession of the child in self-isolation should clearly communicate to the other parent that the child is exhibiting symptoms of the virus. If the non-possessing parent has been somewhat exposed to the virus and is in self-isolation or is experiencing symptoms of the virus it would be difficult for the court to sanction the possessing parent for exercising judgment and not allowing the affected parent to have parenting time. Remember that the most important thing at this time is the child’s best interests . During this time, communication with the other parent is key, and you should both utilize your best judgment.

Additionally, all courthouses in the State of Illinois have now closed except for hearing emergency matters. You may also be wondering, “If the other parent doesn’t give me the children during my parenting time, isn’t that an emergency?” Unfortunately, the answer is we are not 100% certain. We are finding that the courts are telling us to file a Petition which will then be reviewed by the court to see if it merits an emergency hearing. If you find yourself in a parenting time dispute that cannot be resolved by direct communication, your first option at this time is to have a copy of your court order handy and call the police on the non-emergency phone number. Explain to them that you have a court order that states it is your time to have your children, and the other parent will not turn them over. Hopefully, the police will review the order, make a phone call, and resolve the matter without further escalation.

Unfortunately, sometimes police deem these cases to be “civil matters,” and are unwilling to get involved. In that case, you should contact an attorney. Sometimes attorneys can get their point across in a way that others can’t. That includes threats to bring the matter to the court’s attention where sanctions can be involved, including the imposition of attorney’s fees. Some courts have provided in their orders that any attorney who brings an emergency motion that is not really an emergency can be subject to sanctions.

In these types of situations, you may be entitled to relief in the future. The most common relief is makeup parenting time. Frequently, there is a finding that the other parent is in contempt of court and reimbursement of attorney’s fees is appropriate. We expect many courts will take a dim view if it finds that the other parent’s non-compliance with the court order and the Governor’s Order was willful and without compelling cause or justification.

We understand that there are many questions during this unprecedented time. If you have questions regarding parenting time during the COVID-19 outbreak, please contact us to speak with one of our experienced attorneys. We have taken measures to protect everyone's safety for in person consultations, and we are also available for video conferencing.

Cannabis Considerations

Mon, 06 Apr 2020 21:43:45 GMT

In this article, Duane Deters discusses the new laws in Illinois concerning the legalization of marijuana.

Criminal Considerations

As of January 1, 2020, Illinois became the 11th state to legalize recreational cannabis. Many regulations remain to be written and there will be many opportunities for courts to interpret the law.

The Cannabis Regulation and Tax Act (the Act) allows people 21 and older to possess up to 30 grams of cannabis flower for recreational purposes. For those that don’t know, 30 grams is roughly the amount of raw cannabis one person can cup in two hands. Further possession limits are no more than 500 milligrams of a cannabis infused product or 5 grams of cannabis concentrate. That is, if you are a resident of Illinois. If not, those limits are halved. Employers and landlords can ban cannabis from their properties and it cannot be smoked or otherwise consumed in public.

One of the areas that will become increasingly litigated concerns driving while under the influence of drugs, in this instance, cannabis. Prior to the State making medicinal marijuana legal, Illinois was what was called a “per se” state, meaning driving with any amount of THC (the active ingredient in cannabis) resulted in the motorist being prosecuted for DUI. With the passage of medicinal marijuana, the State also changed that law and created a limit for the amount of cannabis that can be in a person’s system similar to the blood alcohol content limit of 0.08. When it comes to cannabis, that limit is 5 nanograms in the blood or 10 nanograms in other bodily substances. However, this is only for those with the medical marijuana card. When it comes to recreational use, those limits do not apply. In other words, the recreational user is subject to an under the influence standard. What does it mean to be driving under the influence? Illinois law means that the person is incapable of safely driving. One can expect the proof to be similar in an alcohol DUI case where the motorist did not subject to testing. Currently, the National Highway and Safety Administration (NHTSA) has not developed field sobriety tests to determine if someone is under the influence of cannabis. Most police officers are not trained to recognize symptoms of cannabis impairment which do not always mirror symptoms of alcohol impairment. NHTSA has developed a program for officers to detect drug impairment and that is called a Drug Recognition Evaluation. There are about 40,000 law enforcement officers in Illinois but very few are trained DRE officers, about 159 statewide, or about 0.004%. However, there are three in Macon County. Interestingly, while a person can refuse a field sobriety test when under suspicion of driving under the influence of alcohol without any consequences to his or her license, Illinois law now provides that a motorist who refuses validated roadside chemical testing or standardized field sobriety tests approved by NHTSA will have their license suspended. Currently no validated roadside testing or standardized field sobriety testing exists.

It is additionally worth noting, that under the Act, persons under the age of 21 may not possess cannabis, and if they do so in a vehicle, the law further provides that their license can be suspended. A parent or guardian who allows a person under the age of 21 to use cannabis on their private property is guilty of a Class A Misdemeanor subject to a minimum fine of $500.00. If death or great bodily harm directly or indirectly results, such as a car crash, that offense is a Class 4 Felony.

There are additional limitations when it comes to recreational cannabis use. A user cannot undertake any task under the influence of cannabis when doing so would constitute negligence, professional malpractice, or professional misconduct. One cannot lawfully possess or use cannabis unless permitted for a qualifying patient or caregiver pursuant to the medical cannabis law in a school bus, on the grounds of any preschool or primary or secondary school, or in any correctional facility. Further, you can’t have it in a vehicle not open to the public unless the cannabis is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving, or in a private residence that is used at any time to provide licensed child care or other similar social service care on the premises.

You cannot use cannabis in a motor vehicle or in any public place or knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act. In other words, if you have kids under 21, you can’t use in your own house when they are home. Obviously, smoking cannabis in any place where smoking is prohibited is likewise prohibited.

A “public place” means any place where a person could reasonably be expected to be observed by others. “Public place” includes all parts of buildings owned in whole or in part, or leased, by the State or a unit of local government. “Public place” includes all areas in a park, recreation area, wildlife area, or playground owned in whole or in part, leased, or managed by the State or a unit of local government. “Public place” does not include a private residence unless the private residence is used to provide licensed child care, foster care, or other similar social service care on the premises.

Can a Person Use and Work?

When it comes to employment related issues, employers can adopt reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner. This means that many employers probably need to update their drug use and possession policy manual. It will take more than a positive drug test to fire an employee suspected to be under the influence of cannabis while on the job. The law provides that an employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Can a Grow My Own?

Illinois has of course addressed this issue and said yes, but with limitations. The cultivator must be an Illinois resident 21 years of age or older and a registered qualifying patient under the Compassionate Use of Medical Cannabis Program Act. Those individuals may cultivate up to 5 cannabis plants that are more than 5 inches tall, per household without a cultivation center or craft grower license.

The cannabis cultivation must take place in an enclosed, locked space. Seeds may be purchased from a dispensary for the purpose of home cultivation. Seeds may not be given or sold to any other person. The plants cannot be stored or placed in a location where they are subject to ordinary public view and reasonable precautions must be taken to keep the plants secure from unauthorized access, including to persons under 21.

Cannabis cultivation may occur only on residential property lawfully in possession of the cultivator or with the consent of the person in lawful possession of the property. An owner or lessor of residential property may prohibit the cultivation of cannabis by a lessee. Cannabis plants may only be tended by registered qualifying patients who reside at the residence, or their authorized agent attending to the residence for brief periods, such as when the qualifying patient is temporarily away from the residence.

A registered qualifying patient who cultivates more than the allowable number of cannabis plants, or who sells or gives away cannabis plants, cannabis, or cannabis-infused products produced under this Section, is liable for penalties as provided by law, including the Cannabis Control Act, in addition to loss of home cultivation privileges as established by rule.

Duane Deters is an Associate at Wozniak & Associates and can be reached at (217) 367-1647