February 28, 2018
What Are Some of the New Illinois Laws for 2018
If you’ve been wondering about the new Illinois laws for 2018, our legal experts at O’Dekirk, Allred, & Associates in Joliet would like to share a few highlights. More than 200 new laws took effect on January 1, 2018. This may or may not affect a legal issue you’re involved with, so if anything we discuss applies to your situation, please get in touch to learn more.
Tough on Crime
In a move to support Chicago’s effort to reduce gun violence, one of the new laws will increase sentences for those who commit repeated gun crimes. Instead of being sentenced to three to 14 years in prison, the sentences will be seven to 14 years. Judges who depart from this guideline will be required to explain why.
Supporters of the new law feel that the tougher penalties will be a deterrent while critics indicate there is little evidence that longer sentences are effective. Those opposed to the law are also concerned that tougher sentences will lead to additional arrests of African-American and Latino men while having no effect on gun-traffickers.
Both sides of the aisle supported the new law because the law also included a number of provisions intended to assist with reducing the overall prison population. Lawmakers who supported the bill felt that repeat gun offenders present enough of a danger that the new sentence lengths make sense.
If you are in need of a lawyer for your criminal case, contact O’Dekirk, Allred, & Associates in Joliet. Our attorneys and staff are committed to working relentlessly on your behalf.
Hate Crimes and Sentencing
Another of the new Illinois laws for 2018 expands hate crimes to include those crimes that are committed at mosques, synagogues, churches, and other places of worship. This change was passed in response to an increase in racist graffiti and vandalism at religious spaces all over Illinois. Cyberstalking, stalking, and sending obscene messages can all also be considered hate crimes because technology has increasingly been used in these attacks.
Other changes to criminal laws included removing what has been referred to as the “gay panic” defense in murder trials and sentencing. Defendants can no longer excuse violence by indicating the crime was an act of passion upon discovering a victim was gay. Also, sexual orientation can no longer be a provocation in second-degree murder trials and sentencing.
Policing for Profit
Our state’s civil forfeiture laws are now different base on the new Illinois laws for 2018. Previously, police and prosecutors could take money, vehicles, land, and other property from suspects. The items were often auctioned off, which led to this practice being called “policing for profit” because the proceeds of the auctions funded both police and prosecutor’s offices.
Changes to the forfeiture laws now make it easier for property owners to have their case adjudicated. Additionally, the burden of proof has now shifted to officials and the threshold has been changed from probable cause to now being a preponderance of the evidence.
The new Illinois laws for 2018 state that 16 and 17-year-olds are now allowed to sign up to be organ and tissue donors at the time they receive their driver’s license. However, parents and guardians can keep them off the official registry until a teen’s 18th birthday. Advocates are hoping that allowing teens to sign up earlier will prompt conversations to help parents agree to allow their teen to be a donor.
Birth Certificate Changes
Laws for transgendered people have been eased. It will now be easier for a transgendered person to change their sex designation on their birth certificates. In the past, the change could only be done if a doctor confirmed that the individual had transition surgery. Now, the law allows for a medical or mental health professional to indicate that someone has had “clinically appropriate” treatment which will allow a wider range of transition practices, such as hormone therapy, to be sufficient for a birth certificate change.
In an entirely different arena, birth certificates will now be provided free of charge to those individuals who leave state prison. This is part of an effort to make it easier for convicts to go on to lead more productive lives. This change is meant to allow them to get jobs, find housing, enroll in school, and receive medical and mental health assistance more easily.
In response to potential federal health care changes, laws in Illinois now bar health insurance companies from denying coverage for pre-existing conditions. The laws also now make it illegal for employers to penalize employees who don’t want to participate in wellness programs or disclose genetic information.
There are a number of consumer protections that are effective this year. Here are a few that are now in force:
- Hair salons, barbers, and tailors are now required to provide customers with a price list upon request. The intention is to allow added transparency and to help deter the practice of charging women more for the same service provided to men.
- Businesses can no longer enforce disparagement clauses. These clauses threaten customers who post critical reviews with additional fees. Disparagement clauses are generally found in the fine print.
- Life insurance policies must now inform families if they are due benefits from policies as far back as 2000. Companies will have to check Social Security records to make the determination.
Preschool and early childhood education programs are now prohibited from expelling students unless there are safety concerns for other children. Schools must instead find services and programs to help them resolve those issues presenting a problem. Additionally, public schools must now provide a space for breastfeeding and offer feminine hygiene products in an effort to help increase school attendance rates.
What are some of the new Illinois laws for 2018? These are just a few of them and there are over 200. If you need a lawyer to help you navigate some of these new laws, contact us here at O’Dekirk, Allred, & Associates in Joliet. We have a number of lawyers that specialize in various areas and we will use our extensive experience to help you.
January 16, 2018
Spousal Maintenance Changes for 2018
If you weren’t aware, there are spousal maintenance changes for 2018 that our legal team at O’Dekirk, Allred & Associates in Joliet want to share with you. Changes to alimony (known as maintenance in Illinois law) became effective on January 1, 2018, so it may be important to know about these changes if you are in the middle of divorce proceedings, plan to file for divorce this year, or are looking to have an existing spousal maintenance decision adjusted.
Definition of Maintenance
In Illinois, maintenance is the court ordered financial support that is paid by one spouse to another as a part of their divorce settlement. Under the new guidelines the term “permanent maintenance” is now “indefinite maintenance” which is used to describe maintenance payments that do not have a specific expiration date. Unless the divorce specifies otherwise, indefinite maintenance continues until one spouse dies, the receiving spouse remarries, or the receiving spouse cohabitates on a continual conjugal basis.
If there is a substantial change in circumstances, spousal maintenance may be modified. However, there are divorce settlements that have explicitly non-modifiable maintenance and such maintenance cannot be adjusted no matter the circumstances.
Raised Application Amount
Under the original 2015 law, statutory maintenance guidelines were applied when the gross combined income per year was less than $250,000. This was a guideline and the Illinois courts took other circumstances into consideration, such as the total length of the marriage, ages of the spouses, and differences in assets and income. Other factors were also considered, including physical and emotional problems. These will all continue under the 2018 changes.
According to the spousal maintenance changes for 2018, the threshold for the maintenance guidelines will be raised to a combined gross income per year of $500,000 or less. This means that more couples will be subject to the statutory guidelines. For those couples whose combined income exceeds this amount, they are not necessarily subject to the guidelines, though they could still be used. Additionally, the courts can still deviate from the guidelines for those couples who should be subject, but the court will need to provide a solid rationale for doing so.
If you need the spousal maintenance changes for 2018 explained further, please contact us here at O’Dekirk, Allred, and Associates in Joliet. We can help you with your divorce and help you determine how these new rules will affect you.
Changes to Duration of Payments
The most substantial change in the Illinois law is with respect to the calculation of the duration of the maintenance payments. In 2015, the duration of payments was decided using a basic calculation. To determine the length of the payments, the following formulas were used:
- If the marriage lasted 5 years or less, the length of the marriage was multiplied by .20. So, if you were married for 4 years, (4 times .2 equals .8 years) the length of the payments would equal 9.6 months.
- 5-9 years would be multiplied by .40
- 10-14 years would be multiplied by .60
- 15-19 years would be multiplied by .80
- Marriages that lasted 20 years or more will have a maintenance length that is equal to the marriage or the maintenance will be permanent.
Under the spousal maintenance changes for 2018, the length of time will usually be less than it was under the old law. People married less than 5 years are subject to the same percentage as are those who happen to divorce at the end of the cutoff of the previous benchmarks (years 9, 14, and 19). Those people who stayed married for 20 years or more are also subject to the same rule as before though the wording used is different. Everyone else will find that the duration of their payments will be less than it would have been under the old law. Under the new law, the duration is calculated using the following breakdown:
- Marriages that lasted less than 5 years are multiplied by .20
- Marriages that lasted 5 years are multiplied by .24
- Marriages that lasted 6 years are multiplied by .28
- Marriages that lasted 7 years are multiplied by .32
- Marriages that lasted 8 years are multiplied by .36
- Marriages that lasted 9 years are multiplied by .40
- Marriages that lasted 10 years are multiplied by .44
- Marriages that lasted 11 years are multiplied by .48
- Marriages that lasted 12 years are multiplied by .52
- Marriages that lasted 13 years are multiplied by .56
- Marriages that lasted 14 years are multiplied by .60
- Marriages that lasted 15 years are multiplied by .64
- Marriages that lasted 16 years are multiplied by .68
- Marriages that lasted 17 years are multiplied by .72
- Marriages that lasted 18 years are multiplied by .76
- Marriages that lasted 19 years are multiplied by .80
- Marriages that lasted 20 years or more, the maintenance will be as long as the length of the duration of the marriage or it will be indefinite
The spousal maintenance changes for 2018 does not mean that couples that are already divorced can use the new rules to renegotiate the length of their existing maintenance. There must be a substantial change in circumstances for maintenance to be modified or terminated.
Some elements of the Illinois law are unchanged. It is still the case that all spouses are not entitled to maintenance. One spouse must have a demonstrated need and the other must have an ability to pay. Additionally, Illinois is still gender-neutral when it comes to awarding maintenance. Husbands can be awarded maintenance much like wives can.
The determination of the spousal maintenance amount is still made using the same formula and takes into consideration the economic lifestyle of the couple. Additionally, if a spouse waives maintenance, the waiver is still forever binding.
If you may be affected by the spousal maintenance changes for 2018 and need a lawyer for your divorce case, contact us here at O’Dekirk, Allred, and Associates in Joliet for your free consultation. We can discuss everything with you and help determine how these new changes may change the maintenance outcomes of your divorce.
Blogs and articles by O'Dekirk, Allred and Associates, LLC are for educational purposes only and to give you a general understanding of the law, not to provide any legal advice or be used as a substitute for competent legal advice from a licensed, professional attorney in your state or jurisdiction. The information presented may not reflect the most current legal developments, verdicts or settlements. These materials may be changed, improved, or updated without notice. O'Dekirk, Allred and Associates, LLC is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.
December 15, 2017
Criminal Law Process for a Felony in Illinois
Here at O’Dekirk, Allred & Associates in Joliet, we are very familiar with the criminal law process for a felony in Illinois and have helped numerous clients through each step. If you find yourself facing any type of felony charges, including a DUI or drug offense, we can provide you with aggressive representation to ensure the most positive outcomes.
Before we get to the criminal law process for a felony in Illinois, let’s look at the three basic kinds of crime in the state.
- Minor violations are generally considered petty offenses. These types of violations are frequently punished with a fine.
- The next level is misdemeanors. In Illinois, these crimes can carry as few as 30 days in jail or as many as 364 days. Additionally, fines can range from $1,500 to $2,500.
- The most serious category is a felony which can carry a sentence of up to 60 years. While the penalties vary, the process for all felony charges is essentially the same.
After an Arrest
The police officers that were involved in an arrest must communicate with the State’s Attorney Felony Review office. Police cannot independently charge someone with a felony. The decision to charge someone with a felony rests with the State’s Attorney who gathers information from the officer. The defendant’s criminal history is reviewed and the defendant may be interviewed in an effort to decide if felony charges are appropriate.
The State’s Attorney may reject the charges if there is insufficient evidence or if the circumstances are inappropriate for a felony charge. If the State’s Attorney accepts the charges, the police will process the defendant and the defendant will be held for a bond hearing. If the felony charges are rejected, police can still file misdemeanor charges which they do have full authority over.
Within 72 hours of an arrest, a bond hearing is generally held. The bond court judge is presented with basic facts and charges for the case, as well as the defendant’s criminal history. The defendant’s attorney will make a presentation on behalf of the defendant. After both sides have presented, the judge will make a determination about the terms of release.
The next step in the criminal law process for a felony in Illinois is a preliminary hearing. A judge will be presented with evidence to determine that a felony crime was committed and to determine if there is reason to believe the defendant was responsible for committing it.
The state will present witnesses and the defense can ask these witnesses questions as well. The standard for a preliminary hearing is much lower than at the trial. At this point, a judge is simply determining that there is a likelihood that the defendant committed the crime. If the judge determines that there is no probable cause, the defendant wins the hearing and the case is generally dismissed.
Many cases are presented to a grand jury instead of having a preliminary hearing. The state can charge a person with a felony by presenting evidence to a grand jury. A grand jury is composed of 18 people from the community. The proceedings are conducted in secret and the defense cannot cross-examine the witnesses. The majority of felony cases go through a grand jury process. The grand jury is responsible for determining the same issues as a judge at a preliminary hearing.
If the grand jury believes a crime was likely committed by the defendant, an indictment will be issued which is the official document accusing a person of a crime. With an indictment, a warrant will be issued if the defendant is not already in custody. The State’s attorney can bring cases to the grand jury even if the charges were originally dropped at the preliminary hearing.
Following the indictment or preliminary hearing, the case goes to the county’s Chief Judge. The Chief Judge is responsible for assigning the case to another judge in the county using a prescribed random process.
After assignment to a specific trial court, the defendant is formally arraigned. This is where the charges can be formally read. This is often waived to save time. The defendant’s lawyers already know what the felony charges are. More importantly, at an arraignment, a plea of guilty or not guilty is formally entered.
During this part of the process, the state is responsible for sharing all evidence. The state is required to share specific types of evidence in its possession with the defense, particularly any evidence that has major implications of guilt or innocence for the defendant.
Motions are requests for something specific to be done. For example, the defense can submit a motion to quash arrest, motion to suppress a statement, or motion to suppress evidence to the judge during the pre-trial process. The decision of the judge on these motions can have a very large impact on the outcome of a trial.
If the State’s attorney, the defense attorney, and the defendant agree on a penalty, a plea agreement will avoid a trial and it is often the way that many cases conclude. In the criminal law process for a felony in Illinois, the judge also participates in the plea agreement if the defendant agrees in open court. The defendant must agree to it because the judge will often learn things that would not be known otherwise to the judge. If a plea is agreed to without the judge, the judge has the ability to impose a different penalty than the one agreed to by the defense and the state.
If the case is not settled, it will continue to either a jury trial or bench trial (which is a trial by a judge). The defendant will be found guilty or not guilty of their felony crime and based on the results, the judge will impose the penalty.
The criminal law process for a felony in Illinois can be complicated. If you need a defense attorney with experience, contact us here at O’Dekirk, Allred & Associates in Joliet. Our attorneys can help you through each step and use their experience to achieve the best possible outcome for your case.
November 17, 2017
Common Questions About Child Custody in Illinois
Here at O’Dekirk, Allred and Associates here in Joliet, we wanted to cover common questions about child custody in Illinois. Child custody can be fraught with concern and frustration. Getting answers to common questions can help you understand custody and can help allay concerns and fears about custody issues.
Who gets custody?
When a court must determine who gets custody, they usually use “the best interest of the child” as their standard. There are a number of factors when the court weighs custody issues. When a court weighs factors, no one factor is a controlling factor and not all factors will have the same significance. Some of the factors that go into determining parental custody include:
- Each of the parents’ wishes and preferences
- The child’s wishes, often taking the age of the child, maturity, and education into account
- Parents’ interactions with child
- Adjustment of the child to school, community, and home
- Physical and mental health of involved parties
- Any violence exhibited by either parent
- The willingness and ability of parents to have a close and on-going relationship, as well as encourage and facilitate a close relationship with the other parent.
Joint Custody and Sole Custody—How are They Different?
This is one of the more common questions about child custody in Illinois. When parents are able to cooperate, communicate, and work together for the sake of their child, joint custody may be awarded. In joint custody, parents share decision making for major decisions that include healthcare, education, and religion.
A Joint Parenting Agreement is drawn up when joint custody is awarded. The agreement outlines each parent’s rights and responsibilities for their child and determines the residence arrangements. The agreement also specifies what should be done when there is a disagreement about a parenting decision.
If one parent is not suitable or able to be appropriately responsible for parenting decisions or if the parents cannot cooperate effectively with each other, sole custody may be awarded to one parent. Sole custody designates one parent as having sole authority for the child’s major life decisions.
Sole custody does not mean one parent no longer gets visitation rights and joint custody does not mean that the parents split visitation rights equally. There is a visitation schedule that is either court ordered or agreed to by both parents. Visitation schedules may dictate that one parent has most of the time or that the time is shared to varying degrees. Regardless of sole or joint custody, both parents have a right to school, medical, dental, and child care records.
Joint Custody and Child Support—Does Custody Determine Support?
The parents’ financial resources and the needs of the children are the main factors in determining child support but other factors such as parenting time do play a role in determining each parent’s financial responsibilities. Parents may have joint custody and share time equally, but one parent may be expected to pay more.
Can You Prevent Visitation if Child Support has Not Been Paid?
You cannot refuse visitation based on whether or not child support has been paid. At the same time, you cannot refuse to pay support if you are prevented from seeing your child. Denying visitation or child support can result in being found in contempt of court.
Can My Child Decide Which Parent to Live With?
Another of the common questions about child custody in Illinois, children in the state do not get to outright choose to reside with one parent. The child’s wishes can be taken into consideration as one factor in determining where a child will reside.
What Happens when Parents Cannot Agree on Custody?
When parents cannot reach an agreement on custody, the court will sometimes mandate mediation. A mediator is trained and appointed by the court as a neutral third party. Mediators work to help parents reach an agreement on custody. Mediation discussions remain confidential regardless of the outcome and if the parties are unable to reach an agreement, the issue will proceed to trial.
Sometimes, when parents cannot come to an agreement, the court will appoint a guardian ad litem (custody evaluator) to assist the court in making a determination about custody, based on the best interest of the child. The custody evaluator’s determinations will be taken into consideration when the custody issue goes to trial and the judge makes a determination.
Can I Increase My Chances of a Larger Custody Agreement?
An experienced family attorney, such as O’Dekirk, Allred and Associates in Joliet, can advise you about ways to increase your chances at a better outcome and answer your questions about child custody in Illinois.
Here is an additional list to help you when proceeding with a divorce and wanting to achieve your goals in regards to the time you wish to be granted with your children.
- Do not make the other parent’s visitations difficult or complicated. Also, do not interfere with their visitation rights.
- Do not yell at the other parent or your child.
- Avoid any physical confrontations.
- Make all child support payments
- Do not take your child out of daycare or school for a non-emergency without discussing it with the other parent.
- Try to engage in positive interactions as much as possible with the other parent and your child.
- Consult with your attorney before making any significant changes to your living arrangements.
- Do not unfairly or excessively criticize the other parent to others or your child, even if you feel your criticisms are all warranted.
- Do not deny the other parent phone contact when the child is with you.
What Should I do at a Custody Trial?
In a custody trial, it is important to present yourself in the best possible light. Be sure to dress professionally and exhibit good conduct at all times. Be calm during all testimony and try to maintain neutral facial expressions – no matter what. It is important to avoid letting the judge see expressions of anger or frustration. Let your attorney object when objections are needed. If you need to tell your attorney something in court, write a note. It is important to conduct yourself professionally at all times in court.
If you have additional common questions about child custody in Illinois, contact us here at O’Dekirk, Allred and Associates in Joliet. We can help you with your custody issues and work diligently on your behalf to achieve the best possible outcome.
October 15, 2017
Why You Need a Real Estate Lawyer
Today, O’Dekirk, Allred & Associates in Joliet discusses why you need a real estate lawyer. We know that buying a home is one of life’s most significant purchases, involving a lot of paperwork and various legal issues. Even as a seller, it’s not as easy as finding a buyer and collecting a check. Everything must be handled systematically, contracts need to be read and understood, and if anything goes awry, both buyers and sellers need legal protection.
Let’s break down why you need a real estate lawyer even further…
Purchasing a Home
For the majority of home purchases, a seller contracts with a real estate agent, usually in writing. This contract is called a brokerage contract. When the agent (also referred to as the broker) locates a buyer, any negotiations that need to take place are done through the broker because the broker is responsible for acting as an intermediary between the two parties, the buyer and seller.
Once the parties have reached an informal agreement on an offer, a formal written contract is drawn up and signed. The buyer must then pay or obtain financing if they don’t have it already. A title search, inspection, and appraisal are performed. Eventually, the buyer takes possession of the property and the seller receives the agreed upon amount of money.
Like any purchase, there can be issues. For example, some houses, like cars, can turn out to be lemons. This is when and why you need a real estate lawyer.
A real estate lawyer will help you avoid problematic terms in the sale of your home. Some of these problems begin with the brokerage agreements. Many real estate agents use standard forms. These forms can lead to problems. For example, if there is no agreement to the contrary, the seller may have to pay a brokerage commission, even if the property doesn’t sell. Also, the seller can end up paying more than one commission.
Using a residential real estate attorney can help ensure that particular options are available to you as either the buyer or the seller. A real estate lawyer can ensure that a seller or buyer has the right to negotiate on his or her behalf. Lawyers can also help if there are issues and the seller needs to withdraw from the contract.
There are a number of laws and issues that a real estate lawyer can prevent and they can help prepare buyers and sellers. Real estate lawyers also ensure that their clients are better aware of what their contracts mean and whether it is really in their best interest to sign. If you need a real estate lawyer, contact us here at O’Dekirk, Allred & Associates in Joliet.
Even if one not necessary during negotiations, the buyer or seller may want to consult with a real estate lawyer regarding the tax consequences of the sale. Income tax for the seller, in particular, can be substantial. A great reason why you need a real estate lawyer prior to the sale is to learn about and take advantage of various tax provisions to lessen the impact.
The single most important document in a property sale is the purchase agreement. Using a real estate lawyer to step through the purchase agreement for the sale can help offer an opportunity to tailor the agreement to better address the needs of the parties involved.
Here are some common examples of things a real estate lawyer can help determine:
- Was there a lawful addition to the property or has the property been altered?
- Will future changes to the property that the buyer wants to make be legally allowed?
- If an inspection reveals lead-based paint, termites, asbestos, or radon, what will happen?
- What will occur if the property is found to contain hazardous waste?
- If the closing fails to take place, what happens? What are the legal consequences? What happens to the earnest money and down payment?
- Will the down payment be held in an escrow account? Will a lawyer oversee the escrow account? What are the escrow instructions and are they appropriate?
- Does closing depend on the buyer getting financing? Is the condition appropriate for this sale? Most buyers need to finance most of the purchase price for a home with a mortgage. The purchase agreement should include a carefully worded condition that the purchase agreement is contingent upon the buyer obtaining financing.
Once a purchase agreement is signed, it is appropriate to determine the title for the property. It is important that both the buyer and the financial institution offering to finance are satisfied with the results of the title search. It is also important to ensure that the legal description is accurate and that there are no issues with prior or adjoining owners.
Review of the title and ensuring the accuracy of the legal description can be confusing which is why you need a real estate lawyer. They can help determine if there are any exceptions to the title or whether there are potential problems.
A real estate lawyer can also ensure that you are aware of any zoning issues. The title search does not include any zoning information. If there are future plans for improvement, the real estate lawyer can help determine whether any zoning ordinances would be violated.
Even the finish line can be problematic. All closing papers must be prepared, as well as the sale transaction. A real estate lawyer can help a buyer or seller with all of the closing paperwork and ensure that everything is appropriate and properly executed.
It is also helpful to have a real estate lawyer present just in case any last minute disputes arise. If other parties involved have a lawyer present and you are without one, your interests could be unprotected.
As you can see, there are many reasons why you need a real estate lawyer, so make sure your interests are protected during one of biggest events in your life. At O’Dekirk, Allred & Associates in Joliet, we want to make sure that the buying or selling of your home is a positive experience. Let us guide you through the process and provide peace of mind.